National Irish Bank, Re (No. 1) [1998] IEHC 116; [1999] 3 IR 145; [1999] 1 ILRM 321 (13th July, 1998)

JUDGMENT delivered the 13th day of July 1998 by Mr. Justice Peter Shanley . 1. On the 30th March, 1998 the Hon. John Blayney, a retired Judge of the Supreme Court, and Thomas Grace, FCA, were appointed by the High Court on the application of the Minister for Enterprise and Employment pursuant to Section (1) of the Companies Act, 1990 to be joint inspectors to investigate and report on the affairs of National Irish Bank Limited relating to:- (i) The improper charging of interest to accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998; (ii) The improper charging of fees to accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998; (iii) The improper removal of funds from accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998; (iv) All steps and action taken by National Irish Bank Limited its directors and officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered. (v) The manner in which the books records and accounts of the said National Irish Bank Limited reflected the foregoing matters. (vi) The identity of the person or persons responsible for and aware of any of the practices referred to above. (vii) Whether other unlawful or improper practices existed in National Irish Bank Limited which served to encourage the evasion of any revenue or other obligations on the part of the bank or third parties. 2. The High Court having so appointed the Inspectors, directed them to investigate the said matters and deliver an interim report to the High Court not later than the 22nd June, 1998. Prior to that date, the Inspectors sought the Court's directions on a number of matters in consequence of which Mr. Justice Kelly pursuant to Section 7 (4) of the Companies Act, 1990 directed, on the 11th June, 1998, that there be a trial of issues identified in a draft Notice of Motion then proffered to the Court by the Inspectors. The following are the issues:- 1. A determination that persons (whether natural or legal) from whom information, documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990 are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that the answers or documents may tend to incriminate him, her or it. 2. A determination that the procedures outlined by the Inspectors in their letters dated the 4th June (contained within Exhibits C and D to the Affidavit of John Blayney and Tom Grace sworn herein on the 11th June, 1998) are consistent with the requirements of natural and constitutional justice. 3. Mr. Justice Kelly, in his Order of the 11th June, 1998, directed service of the Notice of Motion on National Irish Bank Limited (herein called NIB), the Attorney General, the Minister for Enterprise and Employment and on an employee representing all employees and agreed by such employees to represent them. 4. In an Affidavit sworn on the 11th June, 1998 the Inspectors indicated the work undertaken by them up to that point in time. They indicated that they had written to the bank and all its current and former employees who held office since 1988 asking for any information or documents relevant to the enquiries of the Inspectors. The Inspectors also advertised in the newspapers and also set about arranging interviews. After writing to these employees, they received correspondence from solicitors acting for such employees or from employees themselves. In summary that correspondence asserted that the employees (or former employees of NIB) had: (a) The right to be legally represented at any interview. (b) The right to be legally represented and present when evidence was given concerning their clients. (c) The right to cross-examine anyone giving evidence concerning their clients. (d) The right to advance notice of questions to be asked at interview. (e) The right to all documents concerning their clients. (f) The right to refuse to answer questions where the answer might possibly incriminate them. 5. Having regard to these assertions and concerns, the Inspectors wrote to the Solicitors for the employees or former employees of NIB on the 4th June, 1998. Their letter to Mason Hayes & Curran (who represented seventy-five employees) was as follows: "Dear Sirs, National Irish Bank Limited Your clients John O'Reilly and Others We refer to your letter of the 21st May, 1998, your fax of 26th May, 1998 and our subsequent meeting with your Mr. Hoy and Mr. McDowell S. C. Arising from that correspondence and meeting it may be helpful to set out the approach we intend to take in relation to certain issues discussed. 1. Right to refuse to answer questions on the ground of self-incrimination. We have been advised that a person giving evidence to Inspectors pursuant to Section 10 of the Companies Act, 1990 is not entitled to refuse to answer any question on the ground that the answer may tend to incriminate him or her. We understand that you may take a different view or at least do not consider that you can advise your clients to accept without determination of the issue by the Court, that they are not entitled to refuse to answer questions on this basis. Without pre- judging the course the inspection may take, we also understand that this issue is likely to arise in the course of interviews and indeed you have expressed concern that one or other of your clients might somewhat arbitrarily become the subject of a test case. 2. Procedures to be followed We have explained that we consider that the first phase of interviews with witnesses will be an information gathering exercise. These interviews will be conducted in private. A transcript of the witness's evidence will be available to the witness from the stenographers on payment of the cost of the additional copy. We have no objection to any witness being accompanied by a legal adviser at such interview but, with respect, we consider that it would be inappropriate certainly premature and probably impossible to treat such interviews as approximating to a trial with an entitlement to attend and cross-examine the evidence given by other witnesses. There can be no question of our indemnifying your clients or any of them in relation to costs whether legal or otherwise. Section 13 of the Companies Act, 1990 states that the expenses of and incidental to an investigation shall be defrayed by the Minister for Justice. We have no role to play in this regard and any question of costs which you wish to pursue must be addressed to the Minister. We do not propose to circulate lists of questions in advance of the taking of any evidence from witnesses. Given the nature of our work it will be impossible to predict with certainty what questions will or will not arise at any particular interview. If however the outcome of the first phase of interviews indicates that it is possible that adverse conclusions may be drawn in relation to certain individuals dependant in whole or in part on the testimony of others then it is our intention that a hearing will be held at which such issues can be addressed, and at which persons who may be at risk of an adverse finding will be entitled to attend to hear the evidence, cross-examine the witnesses and give evidence themselves. In the light of these procedures we consider it would be inappropriate and inconsistent with the statutory procedure to provide copies of the draft report to witnesses and invite comments on it. 3. Request for assistance by letter the 8th May, 1998. The matters the subject matter of this inspection have already been the subject of public discussion and internal and external enquiries. We believe your clients ought to be able to provide this assistance promptly and we look forward to receiving such documentation and information as your client possesses, as soon as possible and in particular without awaiting the outcome of any proceedings which may be initiated to clarify other issues. In this regard we confirm that the documents referred to are documents in your clients own possession. We understand from the meeting of the 25th May, 1998 that your clients as presently advised do not accept that they are not entitled to refuse to answer questions on the ground of self-incrimination when interviewed by the Inspectors. You might confirm that this remains the case. If so, it is our intention to bring the matter before the Court at the earliest possible opportunity to obtain a definitive ruling and avoid unnecessary delay, expense and confusion. It is not clear if your clients also take issue with any aspect of the procedure we propose to adopt. If they do, we invite you to so inform us immediately in order that this issue could also be determined at the same time and any unnecessary delay avoided. We await hearing from you. Yours faithfully, JOHN BLAYNEY and TOM GRACE JOINT INSPECTORS It is clear from this letter that the Inspectors propose a two stage procedure in their examination: the first, an information gathering exercise; the second stage, arising only when the first stage indicates it is possible that adverse conclusions may be drawn in relation to certain individuals dependant in whole or in part on the testimony of others. At the latter stage such individuals at risk will be entitled to attend, hear the evidence, cross-examine the witnesses, and given evidence themselves. John O'Reilly, the manager of the Limerick branch of National Irish Bank Limited, is the employee of NIB agreed by his fellow and former employees to represent them on the hearing of this Notice of Motion. He has been since 1969 an employee of Northern Bank Limited, now known as National Irish Bank Limited. In an Affidavit sworn by him on the 24th June, 1998, he indicated the concerns of himself and his fellow employees and former employees that if they are to answer questions posed by the Inspectors they should be entitled to avail of the privilege against self-incrimination. He further indicated that this Court should decide not only whether he was compelled to answer such questions but also whether such questions could be used against him in subsequent legal proceedings. THE RIGHT TO SILENCE AND THE PRIVILEGE AGAINST SELF-INCRIMINATION The common law privilege against self-incrimination has been part of English law since the constitutional struggles which resulted in the abolition of the Courts of Star Chamber and High Commission in the second half of the 17th century. While the word "privilege" has been associated with the phrase since those early days, it should be said that the privilege against self-incrimination has always encapsulated a right in the individual to refuse to answer a question or produce a document when to do so would in the opinion of a Court tend to expose such an individual to a real risk of criminal prosecution or penalty. The right is one which is vested in witnesses before Courts and in all persons subjected to investigations whether they be formal investigations or not. There are a number of important values underlying the privilege: it is, first and foremost, concerned with respecting the will of an accused person to remain silent; but it is also a privilege which recognises the right to privacy: as Lord Mustill said in his speech in R. -v- The Director of Serious Fraud Office 1993 AC 1 at page 29, the right is a "reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business". A further reason justifying the privilege was the prospect of an accused's guilt being extracted or established solely on his own testimony: such a process was offensive to the common law's latterday sense of "fair play" and, according to Lord Mustill, it was thus unfair to put a person in a position where he was exposed to punishment whatever he did: "If he answers he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal". 6. While respect for fair procedures, the right to privacy and silence all fostered the growth of the privilege and its extension to extra-curial contexts, its origins, as I have indicated, were provided and provoked by a reaction to the abuses perpetrated by the Judges of the Star Chamber in the misuse of interrogation under oath. In Heaney -v- Ireland 1994 3 IR 593, Costello J. (as he then was) analysed with clarity the "common law right to silence" (as he described it). He said (at pages 603 and 604):- "1. The right to silence can arise in a variety of different circumstances. The nature and scope of the right and the reasons why it was conferred by law can differ in significant ways and will depend on the circumstances in which it is conferred and exercised 2. The right to silence can properly be referred to as an immunity or privilege against self-incrimination. This immunity has also been termed by the Supreme Court as 'the right to protection against self-incrimination'. 3. When a person is arrested as a suspect and subsequently charged with an offence two discrete immunities are conferred by the common law. The common law recognises (a) the immunity against self-incrimination of a suspect and (b) the immunity against self incrimination of an accused person during his trial. The suspect's immunity was developed to avoid the risk of untrue confessions being obtained from a person while in police custody. The law does not prohibit a suspect from confessing to a crime - nor does it prohibit the questioning of a suspect in custody. It provides however, that a suspect should not be required to answer questions on pain of punishment should he not wish to do so; that he is free to remain silent should he so choose and that he should be informed of his right to do so. An accused's immunity was developed from the objections taken by the common law Courts to the abuses arising from Court procedures involving the judicial interrogation of accused persons. As a result, an accused cannot be required to give evidence on his own behalf and is entitled to remain silent during it and not to be questioned either by the prosecution or the presiding judge. 4. The common law immunity against self-incrimination also exists in favour of a person who is subject to interrogation by a person in authority other than a police officer." 7. O'Flaherty J., delivering the Judgment of the Supreme Court in Heaney -v- Ireland 1996 I IR 580, noted that an Irish text on the law of evidence (Gilbert's law of evidence) published in Dublin in 1794 stated: "Our law differs from the civil law, that it will not force any man to accuse himself and in this we certainly follow the law of nature which commands every man to endeavour his own preservation and therefore pain and force may compel men to confess what is not the truth ....". THE RIGHT TO SILENCE, THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE CONSTITUTION 8. Nowhere in the Constitution is the right to silence or the privilege against self-incrimination expressly recognised. In The People (the Director of Public Prosecutions) -v- Quilligan (No. 3) , Supreme Court, 14th July, 1992, Finlay C. J. expressing the view of the Court said:- "The Court does not find it necessary therefore to express any view on the question as to whether in what circumstances or subject to what qualifications if any a right of silence or self-incrimination is an unenumerated right pursuant to the Constitution". In Heaney, supra , Costello J, held that the immunity (of an accused at his trial) whereby he is not obliged to give evidence or be required to adduce evidence on his own behalf or be questioned against his will was such a basic concept of criminal trials that it was: "["So] widely accepted as basic to the rules under which criminal trials are conducted that it should properly be regarded as one of those which comes within the terms of the guarantee of a fair trial contained in Article 38.1". (at p. 606) 9. In the Supreme Court, the Court declined to reach a conclusion as to whether Article 38 was applicable or not, but O'Flaherty J., speaking for the Court, said (at page 589):- "The right to freedom of expression necessarily implies the right to remain silent. The provisions of statutes of the British Parliament are not necessarily a safe guide to what is constitutionally permissible for the Irish legislature. However it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right - the right to silence". 10. It is perhaps appropriate at this stage to indicate the facts in issue in Heaney , supra . The Plaintiff was arrested under Part IV of the Offences Against the State Act, 1939 . Section 52 (1) of the Act empowered a member of An Garda Siochana to demand of a person arrested under Part IV of the Act " A full account of his movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any Section or Sections of this Act or any scheduled offence". Section (2) provides that failure to give the account or information demanded shall be an offence carrying a sentence not exceeding six months. The Plaintiffs challenged the constitutionality of Section 52 on the grounds, inter alia, that it infringed the constitutionally guaranteed right to silence. Costello J. held that while the right to silence was protected by Article 38.1, the provisions of Section 52 were an appropriate restriction of that right. The Supreme Court dismissed the appeal of the Plaintiffs against the decision of Costello J. The Supreme Court as I have indicated declined to reach a conclusion as to whether Article was applicable to the case observing that:- "Nothing touching the due course of a trial arose as a result of the Plaintiffs failure to answer, the Court accepts that on occasion what happens prior to trial may have an adverse impact on the trial". (at page 584) 11. Accordingly, while the Supreme Court recognised a right to silence as a correlative right to the right of freedom of expression contained in the Constitution, it did not exclude the possibility that compelled evidence of an accused at his trial might have the protection of Article 38.1 of the Constitution. Both Costello J. and the Supreme Court accepted that whatever the nature of the right (i.e. whether founded on Article 38 or 12. Article 40) it was not an absolute right and could, in certain circumstances, be abridged by the legislature where it passed a test of 'proportionality'. Costello J. expressed the position thus:- "The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must: (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations (b) impair the right as little as possible. (c) be such that their effects on rights are proportional to the objective" .... (at page 607) 13. In the Supreme Court, O'Flaherty J. at page 590, adopting the same approach expressed the view that:- "The Court concludes that there is a proper proportionality in the provision between any infringement of the citizen's right with the entitlement of the State to protect itself". 14. A similar approach was adopted by the Supreme Court in Rock -v- Ireland 2 ILRM 35 , when considering the constitutionality of Sections 18 and of the Criminal Justice Act, 1984 . Hamilton C. J., speaking for the Court, said at page 49:- "The question to be considered by this Court is whether the restrictions which the impugned Sections place on the right to silence is any greater than is necessary to enable the State to fulfil its constitutional obligations". ABROGATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION AT COMMON LAW 15. Lord Mustill in R. -v- The Director of Serious Fraud Office , 1993 AC 1 observed that "Statutory interference with the right (i.e. the privilege against self-incrimination) is almost as old as the right itself" . He said (at page 38):- "Since the sixteen century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating materials and in more recent times there have been many other examples in widely separated fields which are probably more numerous than is generally appreciated. These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. A statute occasionally provides in so many terms that the information may be used in evidence; sometimes it may not be used for certain purposes, inferentially permitting its use for others, or it may be expressly prescribed that the evidence is not to be admitted, or again, the statue may be silent". 16. That there was a lengthy history of statutory interference with the right against self-incrimination was accepted by the Supreme Court in Heaney -v- Ireland , Supra, O'Flaherty J. said at page 587:- "The Irish legislative experience is somewhat akin to what has been enacted in Britain but with the important qualification touching the primacy of the Constitution which will be considered hereafter a selection but not an exhaustive list of statutes in diverse areas which required disclosure include the customs consolidation Act, 1876, the Road Traffic Act, 1961 ; the Companies Acts, 1963-1990; the Income Tax Acts and the Finance Acts; the Offences Against the State (Amendment) Act, 1972 ; the Criminal Law Act, 1976 ; the Criminal Justice Act, 1984 ; The Bankruptcy Act, 1988 ; the Criminal Justice (Forensic Evidence) Act, 1990 ; the Pensions Act, 1990 and the Social Welfare (Consolidation) Act, 1993 ". 17. Having observed on the differences in substance and objectives between the various statutes O'Flaherty J. said (at page 588): "In the light of the inconsistencies between each it would be idle to engage in summarising or parsing the various statutes any further; however they each serve to illustrate that in certain circumstances a person may be required to disclose information under threat of penal sanction. They invoke a legislative intent to abrogate to various extents, the right to silence, in a myriad of contrasting circumstances". RESTRICTION ON THE CONSTITUTIONAL RIGHT TO SILENCE 18. As I have already indicated, the acceptance that the right to silence is an unenumerated constitutional right requires the Court, when considering the constitutional validity of legislation restricting such a right, to assess whether the restriction which the impugned sections place on the right to silence is any greater than is necessary to enable to State to fulfil its constitutional obligations. SAUNDERS -V- THE UNITED KINGDOM 19. Ernest Saunders was the Chief Executive Officer of Guinness Plc in 1986 when it was competing with Argyll Group Plc to take over a third company, Distillers Company Plc. Allegations of misconduct during the course of the take-over battle led the Secretary of State for Trade and Industry in the United Kingdom to appoint Inspectors under Sections 432 and 442 of the English Companies Act, 1985. Saunders was interviewed on nine separate occasions during the year 1987; transcripts of these interviews were given to the police . Saunders was ultimately charged with offences relating to the illegal share support operation involved in the take-over of the Distillers Company. The transcripts were admitted in evidence in the course of his trial and read to the jury over a period of three days. The Prosecution sought to contradict Mr. Saunders' oral testimony with the contents of these transcripts. Saunders was convicted on twelve counts in respect of conspiracy, false accounting and theft. He received and overall prison sentence of five years. In its Judgment the European Court of Human Rights (at paragraph 67 of its Judgment) observed on the investigative functions of the Inspectors appointed under the Companies Act, 1985:- "In this respect the Court recalls in its Judgment in Fayed -v- UK where it held that the functions performed by the Inspectors under Section 432(2) of the Companies Act, 1985 were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities - prosecuting regulatory, disciplinary or even legislative. As stated in that case, a requirement that such preliminary investigations should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effect of regulation in the public interest of complex financial and commercial activities." 20. Article 6.1 of the European Convention on Human Rights in so far as it is relevant states:- "In the determination of .... any criminal charge against him everyone is entitled to a fair ... hearing ... by an independent and impartial Tribunal". 21. The Court, however, held that there had been an infringement of Mr. Saunders' right not to incriminate himself in that transcripts obtained in the non-judicial investigation were used to incriminate Mr. Saunders in the trial proceedings. The Court expressly rejected the use of such evidence, obtained under compulsion, at the trial of Mr. Saunders. THE REPRESENTATIVES RESPONDENTS' SUBMISSIONS 22. The representative Respondents' submissions on the issue relating to self-incrimination can broadly be summarized as follows:- (i) This Court when deciding whether a person is obliged to answer questions put to him under Section 10 of the Companies Act, 1990 must also decide whether (if required to answer) such answers or their fruits may be used in initiating a prosecution or at a criminal trial of such a person. (ii) The privilege against self-incrimination can only be abrogated by statute or rule of law where such a statute or rule of law recognises that compelled answers to questions (and their fruits) are 'sterile' and where the purpose of the requirement is proportionate to the infringement of the right to silence. (iii) There is a constitutional right in a citizen not to be confronted with the dilemma of "confess and be punished or refuse to confess and be punished". (iv) There is a constitutional right not to have compelled testimony used against one at one's trial. (v) Sections and of the Companies Act, 1990 should be construed together. If Section of the Companies Act, 1990 authorises the admission of compelled answers in criminal proceedings it is unconstitutional. It should be construed as excluding such answers and their 'fruits'. PART II OF THE COMPANIES ACT, 1990 Part II of the Companies Act, 1990 deals with investigations and provides for the appointment of Inspectors by the Court for the purposes of carrying out those investigations. Section 8 in particular provides for the appointment of Inspectors on the application of the Minister where the Court is, inter alia, satisfied that there are circumstances suggesting that the affairs of a company are being conducted in an unlawful manner or for a fraudulent or unlawful purpose. Section 10 imposes an obligation on officers of the company and others to produce all books and documents of the company under investigation and to give all assistance to the Inspectors. Section (1) of the Companies Act, 1990 provides:- "It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of Section 9 to produce to the Inspectors all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power, to attend before the Inspectors when required so to do and otherwise to give to the Inspectors all assistance in connection with the investigation which they are reasonably able to give." Section sub-section 2 provides:- "If the Inspectors consider that a person other than an Officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs they may require that person to produce to them any books or documents in his custody or power relating to the company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation to which he is reasonably able to give and it shall be the duty of that person to comply with the requirement." Section (4) of the Act provides:- "An Inspector may examine on oath either by word of mouth or on written interrogatories the officers and agents of the company or other body corporate an any such person as is mentioned in sub-section 2 in relation to its affairs an may - (a) administer an oath accordingly (b) reduce the answers of such person to writing and require him to sign them." Section (5) of the Act provides as follows:- "If any officer or agent of the company or other body corporate or any such person as is mentioned in sub-section 2 refuses to produce to the Inspectors any book or document which it is his duty under this Section so to produce, refuses to attend before the Inspectors when required so to do or refuses to answer any question which is put to him by the Inspectors with respect to the affairs of the company or other body corporate as the case may be, the Inspectors may certify the refusal under their hand to the Court and the Court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence ...." Section (6) provides:- ".. . make any Order or direction it thinks fit including a direction to the person concerned to attend or re-attend before the Inspector or produce particular books or documents or answer particular questions put to him by the Inspector or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the Inspector". Section of the 1990 Act provides as follows:- "An answer given by a person to a question put to him in exercise of the powers conferred by - (a) Section ; (b) Section as applied by Sections 14 and ; or (c) rules made in respect of the winding up of companies whether by the Court or voluntarily under Section 68 of the Courts of Justice Act, 1936 as extended by Section 312 of The Principal Act; may be used in evidence against him, and a statement required by Section 224 of the Principal Act may be used in evidence against any person making or concurring in making it." Section of the Companies Act, 1990 provides as follows:- "A document purporting to be a copy of a report of an Inspector appointed under the provisions of this part shall be admissible in any civil proceedings as evidence - (a) of the facts set out in without further proof unless the contrary is shown, and (b) of the opinion of the Inspector in relation to any matter contained in the report." Finally, section 23 subsection 1 of the Companies Act, 1990 provides as follows:- "Nothing in this part shall compel the disclosure by any person of any information which he would in the opinion of the Court be entitled to refuse to produce on the grounds of legal professional privilege or authorise the taking of possession of any document containing such information which is in his possession." Section obliges directors and others to give all assistance to the Inspector: this duty clearly embraces answering questions put to them by the Inspector. Section 18 provides that such answers may be used against the person. The only entitlement expressly given to a person to refuse to answer a question is where the answer would disclose information the subject of legal professional privilege. I am satisfied that I cannot construe Section 10 of the Act as preserving the privilege against self-incrimination: to do so would require a qualification on the duty imposed by the Act such that the duty to answer applied save where the giving of such answers would tend to incriminate the witness . No such saver appears in Section 10 . It seems to me clear that, had the Oireachtas intended to save the privilege, it could easily have done so. I am satisfied therefore that as a matter of statutory interpretation a witness may not refuse to answer questions on the grounds that his answers might tend to incriminate him and that Section 10 has the effect of impliedly abrogating the right against self-incrimination. I am fortified in this view by the large number of instances where our Courts have allowed that statutory provisions have impliedly abrogated the right to self-incrimination. Some of the many statutory provisions are outlined by O'Flaherty J. in Heaney -v- Ireland , Supra, at page 587. Cases which have dealt with such statutory provisions are the People (at the suit of the Attorney General) -v- Gilbert 1973 IR 383 (in relation to Section 107 of the Road Traffic Act, 1961 ); Heaney -v- Ireland , Supra (in relation to Section 52 of the Offences Against the State Act, 1939 ); the D. P. P. -v- McGowan IR 45 (in relation to Section 52 of the Offences Against the State Act, 1939 ). Apart from the foregoing Irish cases in which the Courts were concerned with statutory provisions requiring persons to provide information, there are a number of English cases where the Courts in that jurisdiction have construed a statute as not preserving the privilege. In passing, I should note that I have found no Irish or English authority for the proposition (advanced by the Respondents) that a valid abrogation at common law requires the sterilisation of answers to questions or the fruits of those answers. The most relevant English authority on the question of abrogation of the privilege is the Court of Appeal decision in London United Investments Plc. 1992 2 All England Reports 842 where it was held that a company director or a person possessing relevant information was not entitled to invoke the common law privilege against self-incrimination when questioned by Inspectors appointed by the Secretary of State under Section 432(2) of the Companies Act, 1985 to investigate the affairs of the Company, since it was clear from the scheme and purpose of Part XIV of that Act that Inspectors would in many cases be appointed to investigate where there were circumstances suggesting that there had been fraud in the conduct or the management of the company's affairs, that Parliament intended that a person possessing relevant information would be under a duty to comply with the requirements to answer questions properly put to him by the Inspectors and that the Inspectors report might lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company's name in the public interest. In those circumstances the Court held that the privilege against self-incrimination had been impliedly removed by Part XIV of the 1985 Act. 23. Dillon L. J. said at page 853:- "On these provisions I reach without hesitation the conclusion that as: (i) Inspectors will in very many cases have been appointed where there are circumstances suggesting there has been a fraud in the conduct of management of a company's affairs and (ii) persons questioned are bound to answer the Inspectors' questions and (iii) the Inspector's report may lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company's name and the public interest, the privilege against self-incrimination is impliedly excluded and is not available to the person being questioned by the Inspectors". 24. While in my view the words of Section 10, and the other Sections of Part II of the Companies Act, 1990 , make it clear that the legislature intended to abrogate the privilege against self-incrimination such as might arise during the course of an Inspector's investigation, and, while both Irish and English authority suggests that the privilege can be abrogated by statute nonetheless the Respondents submit that I should go further and examine the legislative history of the Companies Act, 1990 with a view to construing Section 10 of the 1990 Act. In particular, the Respondents suggest that the Court should use the Dail debates as an aid in the construction of Section 10 (5) of the Act . In The People (the Director of Public Prosecutions) -v- McDonagh 1996 1 IR 565, Costello P., sitting as a Judge of the Supreme Court expressed the view (with which the other members of the Court agreed) at page 570 that:- "It seems to me that the Court should have regard to any aspect of the enactment's legislative history which may be of assistance". 25. Dail debates are, of course, a record of part of the legislative history of an Act of the Oireachtas, and it seems clear that I can look at these debates in construing Section 10 of the 1990 Act. The Respondents point to the Dail debates for the 14th December, 1988; there the Minister for State at the Department of Industry and Commerce said at Column 1514: "My main problem with Deputy Cullen's amendment is that it is in direct conflict with Section 18 which provides that an answer given by a person to a question put to him by an Inspector may be used in evidence against him. The Section also appears in corresponding UK legislation and is important to ensure effective investigation procedures. Without it I do not think we could have effective investigation procedures. I understand Deputy Bruton's reservations about this procedure but, now that we have adopted the notion of having it, it is important that we make it effective. On the other hand the idea behind the amendment may be covered in Section 10 (5) which provides that, if a person refuses to answer an Inspector's question, the Inspector may refer the matter to the Court. Where this happens the Court can enquire into the case and after hearing evidence for the defence can punish the person concerned as if he had been guilty of contempt of Court. If a person persisted in claiming that his refusal to answer a question was based on a fear that he might incriminate himself the Court would be in a fairly good position to adjudicate on any such claim under Section 10 (5)". 26. This view as expressed by the Minister, it is urged, assists the Court in concluding that Section 10 , far from abrogating the privilege against self-incrimination, was providing a forum for its existence. While of course respecting the views expressed by the Minister it does not appear to me, on a perusal of the debate, that his contribution to that debate had the effect of indicating a legislative intention to preserve the privilege against self-incrimination. His contribution represented Dáil material more evidencing his own personal view of the effect of Section 10 than material disclosing the legislative intention behind the section. Having regard to the unambiguous language used in Part II of the Companies Act, 1990 (which clearly indicates, in my view, a legislative intention to abrogate the privilege against self-incrimination) I do not feel it would be safe to rely upon what was said by the Minister at the Committee stage of the Companies Bill, 1987 as a guide to the legislative intention behind Part II of the Act . 27. Accordingly, a consideration of the scheme and purpose of Part II of the 1990 Companies Act , a consideration of its legislative history and a consideration of the various Irish and English authorities on the question of the statutory abrogation of the privilege against self-incrimination lead me to the firm conclusion that the statute had the effect of abrogating the privilege. It remains, of course, to be considered whether such an abrogation was constitutionally permissible. THE CONSTITUTIONAL QUESTION 28. As we have seen, the Supreme Court in Heaney, supra , recognised the constitutional status of the right to silence as a correlative right to the freedom of expression conferred by Article 40 of the Constitution: it also accepted that:- "Just as the freedom of expression clause in the Constitution is itself qualified so must the entitlement to remain silent be qualified" (at page 585) . ..... [H]owever it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right the right to silence" (at page 589 per O'Flaherty J. in Heaney supra ) 29. The approach of the Court in determining whether a legislative encroachment upon the right to silence is constitutionally permissible is one of applying as I have already indicated a test of proportionality and asking whether the restriction which the impugned Sections place on the right to silence is any greater than necessary to enable the State to fulfil its constitutional obligations. 30. Part II of the 1990 Act as stated provides a mechanism for the investigation of companies by Inspectors. The scheme of the Act allows the appointment of Inspectors by the Court on the application of the Minister where there are circumstances which suggest to the Court that the company has been operated in an unlawful or fraudulent manner. The Inspectors are given investigative powers including a power to compel answers from officers and other persons. It is clearly envisaged by the Act that prosecutions can follow. Speaking of the statutory policy behind the corresponding provisions of the English Act of 1985 Scott J. said in London United Investments Plc. 1992 BCLC at page 113/114 :- "It is a regrettable feature of commercial and corporate fraud in these modern times that facilities are available for sophisticated fraudsters to prevent the trail leading to the unravelling of the fraud from being followed up. The secrecy provisions of some countries corporate and banking laws operate to this effect. Nominee shareholdings in offshore companies do so as well. There is often no alternative if frauds and dishonest stratagems are to be laid bare but to demand answers from those who are in a position to give them. This, in my opinion, is at least part of the statutory policy behind Part XIV of the Companies Act, 1985." 31. It is, of course, a legitimate objective of the State, and entirely in the public interest, to lay bare frauds and dishonest stratagems, and where the only means of effectively achieving such an objective is to provide an investigative procedure without a right to silence (as in the instant case) then one can properly assert that the restrictions imposed by Section 10 on the right to silence are no greater than is necessary to enable the State to fulfil its constitutional obligations of ensuring equality before the law and of protecting the property rights of every citizen. Because the abrogation (by Section 10 of the 1990 Act) of the right to silence is no greater than is necessary to enable the State to discharge such constitutional duties, Section 10, in my view, is not invalid having regard to the provisions of the Constitution. 32. The Respondents assert that there is a constitutional right not to have compelled testimony used against one at one's trial and that this Court should decide, at this stage, whether answers compelled under Section 10, or their fruits can be used in evidence. It is argued that the right asserted is one which flows from Article 38.1, namely, the right to be tried in due course of law. I do not believe that in determining that Section 10 abrogates the right to silence, I should have regard to the use to which such answers are put. The statutory obligation to answer self-incriminatory questions is not inconsistent with the right to trial in due course of law. When asked questions by an Inspector, the witness does not stand as an accused person. If he becomes an accused person, having answered incriminating questions, his right to a fair trial may not even at that stage be infringed: it depends on whether the compelled testimony is tendered against him at his trial; if it is, he may, of course, object to it and it would be a matter for the trial judge to determine its admissibility. It is at that stage, and no sooner, that an adjudication on the admissibility of answers (or the fruits of such answers) is to be made. I therefore see no necessary connection between the occasion of questioning by an Inspector and the occasion, at trial, of tendering compelled testimony. No right to a fair trial is infringed at the questioning stage; the use to which the answers are put is a separate matter and where such use threatens to, or does, infringe a constitutional right of the witness that right can be then asserted and vindicated. That it is appropriate to look at the Inspectors' investigative and questioning role separately from any subsequent trial finds support in the decision already referred to of Saunders -v- the United Kingdom , Supra, where (in relation to the Companies Act, 1985 in the United Kingdom) the European Court of Human Rights said of the equivalent of Section 10:- "A requirement that such preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities". 33. Accordingly the Court allowed that the privilege against self-incrimination was not applicable to such preparatory investigations. However, the Court found that the use of such compelled testimony at the trial was indeed a breach of Article 6.1 of the Convention. Equally, in Heaney -v- Ireland, supra , the Supreme Court upheld the constitutionality of Section 52 (1) of the Offences Against the State Act, 1939 and declined to consider the moot point of whether information lawfully obtained pursuant to Section 52 could be used in evidence. The position is no different here: whether or not there is a constitutional right not to have compelled testimony, or its fruits, used against an accused is an issue which I do not now have to decide because it has not as yet arisen. That is a matter which falls to be decided on the occasion when such evidence is tendered. Accordingly I do not have to consider the implications of the wording of Section 18 of the 1990 Companies Act. 34. I propose therefore to answer the first question which is addressed to the Court in the Motion Paper as follows, namely, that persons (whether natural or legal) from whom information documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990 are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that the answers or documents may tend to incriminate him, her or it. PROCEDURES PROPOSED BY INSPECTORS 35. In a letter dated the 4th June, 1998 addressed to the solicitors for the representative Respondent (Messrs. O'Meara Geraghty McCourt) the Inspectors outlined the procedures they propose to follow. It was a letter in almost identical terms to the letter they had sent to Messrs. Mason Hayes & Curran which I have quoted in full at pages 4 and 5 of this judgment. 36. Objection is taken to the procedure (outlined in the letter) by the representative Respondent. While the Applicant suggested the first stage of the Inspectors process is entirely investigative, the representative Respondent disagrees. He says it is accusatory. He points to the Affidavit grounding the application to appoint the Inspectors. It is, he says, replete with accusations of criminal conduct: there are allegations, he says from anonymous sources of crimes committed at particular National Irish Bank branches including Carrick-on-Shannon at which he, Mr. O'Reilly, was a manager for a particular period of time. He says that he now stands in the public domain accused of criminality and is therefore in no different a position to the position of Padraig Haughey himself when he stood before the public accounts committee of Dail Eireann accused of criminal conduct. It is submitted on behalf of Mr. O'Reilly that he is entitled to the full panoply of "Haughey" rights: a copy of the evidence reflecting on his good name, the opportunity to cross-examine his accusers, the opportunity to give rebutting evidence and the entitlement to address the Inspectors. He contends that having regard to such rights he is entitled to all and any material in the hands of the Inspectors which reflect on his good name and reputation and is further entitled to cross-examine his accusers before he himself is sworn and examined. I do not believe this submission to be well founded. The rights identified by the Supreme Court in the case of Re Haughey 1971 IR 217 were rights which the Court believed should be afforded to a person who had been accused of conduct reflecting on his character and good name and where the accusations made were upon the hearsay evidence of a witness before the public accounts committee of Dail Eireann. While it is undoubtedly the case that allegations of the commission of criminal offences have been made in the media against National Irish Bank and its officers, the case differs from the Haughey case where the accusations were made by evidence under oath from one Superintendent Fleming before the Public Accounts Committee. It was that evidence that the Supreme Court held Mr. Haughey was entitled to have tested; in the present case, there is no evidence; there is documentation in the hands of Inspectors but that documentation has not become and is not "evidence" in the sense understood by the Supreme Court in In Re Haughey . Accordingly, the Inspectors cannot be compelled at this point in time to produce any documents to the representative Respondents and, he in turn, is not entitled to any documents or to the facility of cross-examining any person at this intitial stage in the process. 37. I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the Inspectors' work. The procedures identified by the Inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in the Haughey case. I therefore determine that the procedures outlined by the Inspectors in their letters dated the 4th June, 1998 (contained within Exhibit C and D to the Affidavit of John Blayney and Tom Grace sworn on the 11th June, 1998) are consistent with the requirements of natural and constitutional justice. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII