Supreme Court allows appeal on mobile phone transfer but dismisses constitutional notice claim for police investigation.

THE SUPREME COURT

JUDICIAL REVIEW

Appeal No. 282/2003

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Between/

Jason Brady

Applicant/Appellant

and

District Judge Gerard Haughton, The Commissioner of an Garda Síochána, and The Minister for Justice, Equality & Law

Reform

Respondents

and

The Attorney General

Notice Party

Judgment delivered on the 29th day of July, 2005 by Denham J.

1. Appeal

I agree with the judgment of Murray C.J., and with the order he proposes. This is an appeal by Jason Brady, the applicant/appellant,

hereinafter referred to as the applicant, from the judgment and order of the High Court (Ó Caoimh J.) dated the 22nd day of July,

2003, in which the reliefs sought by the applicant were refused. District Judge Gerard Haughton, The Commissioner of An Garda

Síochána and the Minister for Justice, Equality and Law Reform, the respondents, are referred to hereafter collectively as the

respondents.

2. Preliminary Issue

The applicant was in custody and on Friday 23rd April, 2004 counsel for the applicant applied for a production order so that the

applicant could be present at the hearing of his appeal on 27th April, 2004. Counsel for the respondents neither objected nor

consented. The Court expressed the view that such applications place a strain on prison resources and security in the Four Courts.

Counsel for the applicant submitted that the applicant had a right to attend because he could at any stage withdraw his instructions

and seek to represent himself. In the absence of any argument to the contrary the Court made the production order but directed that

the question as to whether the attendance of the applicant is necessary be tried as a preliminary issue.

At the hearing of this preliminary issue it was submitted on behalf of the applicant that he has a constitutional right to be present to

see that justice is done in his own case and to ensure that he is represented properly.

First, it should be noted that this issue arises only in relation to persons in custody, people who have been deprived of their liberty by

a court order. While limitations on liberty arise from such an order it should not automatically limit the right of access to court. Such a

right should not be circumscribed only as a matter of the inconvenience and cost to the State, as the fundamental rights of an

applicant have also to be considered, and a balanced decision achieved. In making a decision on that balance a variety of factors,

depending on the circumstances of each case, require to be considered by a court. As to whether an applicant should be produced in

court will depend on the type of hearing. Thus, for example, if the hearing is one of case management, a routine processing of the

case, then, if the applicant is legally represented, it would only be in unusual circumstances that he would be required to be before

the court. The situation may be different if the applicant is representing himself. On the otherhand, if the hearing is the trial of the

action, then the applicant would have a right to be present, subject to exceptional circumstances. Hearings in court on issues

between these two poles require to be determined by the Judge exercising judicial discretion with due regard to obtaining a

constitutional balance between the fundamental rights of an applicant, the economic and security issues of the State, common

sense, and all the circumstances of the case.

In due course the courts and applicants will be facilitated by video conferencing facilities. Applicants will be enabled to see and hear

what is happening in court, and to consult lawyers, by utilising videoconferencing technology from a facility in prison. Pending the

introduction of such technology the actual presence in court of a person in custody is an issue to be determined by a court on the

facts of each case.

In this case, given that it was the trial of his action in the judicial review hearing, it is a case where prima facie the applicant has an

entitlement to be present (either in the courtroom or by the use of videoconferencing technology) so that he may see and hear the

proceedings and communicate with his legal advisers if he wished. There was no reason given as to why his prima facie right to be

present in court should be denied in this case. Consequently, I am satisfied that it was correct to issue a production order.

3. Mutual Assistance and Co-Operation

During the 20th century the concepts of mutual assistance and co-operation between States were developed in Europe by the comity

of nations in informal procedures between States, and by the European Convention on Mutual Assistance and Criminal Matters

(Strasbourg, 1959) and the additional protocol on Mutual Assistance in Criminal Matters done at Strasbourg, 1978. Part VII of the

Criminal Justice Act, 1994 established procedures in Ireland to enable the State implement such obligations. These steps taken in the

last century are the precursors to the further development in the European Union of justice affairs, as efforts are made to facilitate

access to justice and judicial co-operation, as well as the full employment of mutual recognition: The Hague Programme of the Council

of the European Union, 2004. However, this case falls to be decided on Irish law, being the Criminal Justice Act, 1994.

4. Outline Facts of the case

In December, 2000 the applicant was arrested by members of the Gardaí Síochána in respect of matters unrelated to these

proceedings and, while he was under arrest, the Gardai took possession of certain items of his property. By letter dated 20th

December, 2001, a prosecuting authority in England requested assistance in enquiries relating to allegations of murder and associated

offences of robbery. A further letter of 21st February, 2002 also addressed the matter. This request referred, in part, to property of

the applicant, including the clothes he was wearing, and to photographs and finger prints.

On 5th March, 2002 the applicant served an application under the Police (Property) Act, 1897 seeking the return of his property. This

application was returnable before the District Court on the 26th March, 2002.

On 14th March, 2002 Mr. James Clerkin, a civil servant in the Department of Justice, Equality and Law Reform, nominated, on behalf of

the Minister, the first named respondent to receive the relevant material under the procedure established by s.51 of the Criminal

Justice Act, 1994. On 25th March, 2002 the first named respondent heard the s.51 application, which included some oral evidence

and submissions of counsel for the third named respondent, and ordered that property which had been requested (some of which was

also referred to in the Police (Property) Act application) be transferred to the Minister, and that certain other matters which had not

requested be furnished to the Minister.

On the 11th April, 2002, on the hearing of the application pursuant to the Police (Property) Act 1897, the President of the District

Court ordered that the property the subject of the application be retained in the possession of the Gardai pending further order of the

District Court.

5. Relief Sought

The applicant applied for leave to apply for judicial review, which application was granted on the 13th May 2002 by the High Court.

The grounds for relief were amended later and the amended relief sought was as follows:

1. Leave to seek judicial review by way of certiorari quashing the order of the first named respondent made on the 25th day of

March, 2002 concerning certain items of clothing the property of the applicant herein, photographs, fingerprints and confidential

medical records, of the applicant.

2. An order by way of interim relief putting a stay on the transportation of the property pending the determination of the

proceedings.

3. A declaration that section 51 of the Criminal Justice Act, 1994 is repugnant to the Constitution.

4. A declaration that in making the order under s.51 the first named respondent breached the applicant’s rights under Article 40

of the Constitution of Ireland.

5. A declaration that proceedings pursuant to Section 51 of the Criminal Justice Act are judicial proceedings and accordingly

subject to the Constitutional imperatives and safeguards which inhere thereby.

6. A declaration that the seeking and procuring of the said order in the circumstances that obtained by the second and third

named respondents, in so far as they acted in concert failed to respect the constitutional rights of the applicant.

7. Damages.

6. Grounds for Relief

The grounds upon which such a relief was sought were:-

1. Notice

The order and associated decisions and procedures were made in the absence of and without notice to the applicant.

Since they had a profound effect on important interests and rights of the applicant, including constitutionally protected

rights, this was in breach of fair procedures and of the applicant’s natural and constitutional rights.

2. The Police Property Act 1897

The procedure adopted under s.51 operated to frustrate the applicant’s application under the Police Property Act, 1897

and in the circumstances amounted to an abuse of process.

3. The proceedings under s.51 were carried out in breach of the applicant’s rights:

(a) To private property;

(b) To privacy and bodily integrity;

(c) To trial in due course of law;

(d) To notice of and the opportunity of legal representation in judicial proceedings;

(e) To fair procedures.

4. The provisions of s.51 provide for the alienation of the State’s criminal justice system to other States and are inconsistent

with the Constitution.

7. Grounds of Opposition

The grounds of opposition filed were as follows:-

1. The s.51 procedure is administrative and not judicial; it is in conformity with international principles as to mutual assistance in

criminal matters as provided by the law of this State. The s.51 procedure was carried out in accordance therewith.

2. The various contentions of the applicant set out in the amended statement of grounds were denied, including that the first

named respondent failed to act in a judicial manner.

3. The applicant was not entitled to notice of the s.51 application.

4. In making the impugned order, the first named respondent took into account the provisions of the Police Property Act, 1897.

5. The decision to proceed with the s.51 application was made in accordance with the principles of international comity and the

second named respondent and third named respondent’s obligations thereunder.

8. The High Court

On the 22nd day of July, 2003 the High Court granted an order quashing the order made by the first named respondent on the 25th

day of March, 2002, the application for a declaration that s.51 of the Criminal Justice Act, 1994 (hereinafter referred to as the Act of

1994) is repugnant to the Constitution was refused, and the transportation of property (the subject matter of these proceedings) out

of the jurisdiction was stayed, pending this appeal.

The application of the applicant is grounded on an affidavit of the solicitor of the applicant. It stated that certain items of clothing of

the plaintiff were seized and retained at Ballymun Garda Station when he was detained there in December, 2001, apparently in the

context of a criminal investigation within the State. It was deposed by the solicitor of the applicant that he was instructed that the

applicant had been in England prior to that date and returned voluntarily to Ireland in December, 2001.

The High Court Judge described the case made on behalf of the applicant as follows. The applicant was asked whether he agreed to

give items of his clothing and other samples of forensic material, including a DNA sample, fingerprints, and a blood sample, together

with permission for photographs to be taken, and he was asked whether he wished to speak to members of the West Midlands Police

Force. It appears that the applicant had pleaded guilty in relation to an offence in the District Court and was remanded in custody to

the 15th day of April, 2002, for sentencing. The learned High Court Judge stated that at that time the applicant indicated his

intention of making a Police Property Act application in relation to his clothing, a written notice of application was served on the

Garda Síochána at Ballymun on about the 5th March, 2002 and the application was listed for hearing on the 26th day of March, 2002.

The High Court also stated that it appeared that the sister of the applicant and his brother-in-law were summoned to appear at

District Court No. 50 on the 25th day of March, 2002 to answer questions concerning the applicant. Also, the High Court stated, on

that day, the 25th day of March, 2002, an application was made before the first named respondent under s.51 of the Act of 1994.

The High Court concluded that the application under s.51, irrespective of the setting in which it was made, did not involve the

administration of Justice, consequently it was not necessary for such application to be made before a court, and it was permissible to

have the application made to a designated person.

The High Court was satisfied that the proceedings before the first named respondent did not require the giving of notice to the

applicant and held that in the instant case the applicant did not need to be given notice or be heard by the first named respondent.

Further, the court relied on s.51(15), which provides that the Minister is not empowered to nominate unless provision is made (by the

law of the country requesting) that any evidence that may be furnished in response to the request will not, without his consent, be

used for any purpose other than that specified in the request.

As to the attendance of the suspect, the learned High Court Judge held:

“I am not disposed to hold that the attendance of the suspect or accused is ever required where the procedures of s.51 are

being applied other than in relation to the taking of evidence from the suspect himself or herself.”

As to the taking of evidence of third parties he held:

“… I am satisfied that there was no authority vested in the District Court to issue a warrant or other process for securing the

attendance of that witness. However, the power was vested in the nominated judge to secure the attendance by the issue of

a summons or other process as in vested is the District Court.”

As to the Police Property Act application, the learned High Court Judge was satisfied that the existence of the application in question

was not such as to deprive the Minister of the power to nominate a judge under s.51 (2) of the Act of 1994. In the circumstances he

was satisfied that the applicant’s claim that the Act of 1994, and in particular s.51, was invalid having regard to the provisions of the

Constitution must fail. Further, he held that the applicant had failed to establish any entitlement to the relief sought and the

application was refused.

9. Submissions on behalf of the applicant

Before this Court counsel for the applicant opened the written submissions and made oral submissions stressing:-

(a) The terms of the request and its complexity;

(b) The confidential medical evidence;

(c) That the applicant’s constitutional right to medical assistance was not protected;

(d) That the applicant’s constitutional right to privacy was breached;

(e) The reservation of the Irish Government to the European Convention on Mutual Assistance in Criminal Matters;

(f) That the s.51 procedure amounted to a deliberate denial of the applicant’s constitutional right of access to the court – in

particular with reference to his right to the Police Property Act application;

(g) The positive duty of the courts to vindicate the constitutional rights of a person in the face of an abuse of process.

It was submitted that the procedure under s.51 was the administration of justice. It was submitted, in the alternative, that

administrative decisions which seriously affect rights require fair procedures and that this was such a decision. Further, it was

submitted that the availability of the s.51 procedure for conduct which is not criminal under Irish law renders it repugnant to the

Constitution.

10. Submissions on behalf of the respondents

Counsel on behalf of the second and third named respondents and the notice party submitted that the applicant’s case is limited to

the grounds filed in the amended statement of grounds and the statement of opposition. Broader issues, it was submitted, than were

argued in the High Court, may not be developed on the appeal.

It was submitted that the application order s.51 was not the administration of justice. Reliance was placed on Salinas de Gortari v.

Smithwick (No. 2) [2002] 2 I.R. 553. It was submitted that where the requesting State seeks evidence for the purpose of an

investigation the Act of 1994 does not require notice to be given. It was submitted that what was sought here was property for the

purpose of a criminal investigation in the United Kingdom.

As to the medical reports, during the hearing of the appeal the position of the respondents altered. Ultimately the Court was informed

that the medical reports would not now be transmitted to England. It was indicated that an undertaking would be given that he

medical reports would not be sent to England.

In relation to the Police Property Act, 1897, it was submitted that the judgment of the High Court was correct. It was submitted that

the Oireachtas has struck the appropriate balance and that the applicant had not made out that the legislation infringed the

Constitution.

11. Mutual Assistance, the legal context

This case arises out of a request to the State from another State for mutual assistance, and the subsequent decision of the Minister

for Justice, Equality and Law Reform to take steps to give assistance. Mutual assistance may be requested to assist in the

investigation of a crime in another State, or it may be requested to assist in the obtaining of evidence for a trial in another

jurisdiction.

12. Different types of legal systems

While the legal systems in Ireland and England are both Common Law, and the statutes by which the relevant Convention is invoked in

each State are similar, certain problems may arise in giving mutual assistance in criminal matters between countries with differing legal

systems. Indeed, the fact that most European States have a civil law system is reflected in the Convention and this may cause some

problems in the future in the steps required to implement the law. However, in this case both the requesting and requested State

have a common law system and the diversity which may exist in other situations is not present.

13. Letters of Request

A Letter of Request, dated 20th December 2001, from England, formally requested assistance under the provisions of the European

Convention on Mutual Assistance in Criminal Matters (1959), in relation to a criminal investigation being conducted by officers of the

West Midlands Police Force into the applicant. A summary of the circumstances under investigation was given as follows: on the

afternoon of 10th December 2001, a student at EFF Technology Centre in Birmingham saw a person on the stairs of the building

carrying a laptop, computer and haversack. The student recognised the items as his property, he argued with the man who was

carrying them and who then ran out to the rear car park, having abandoned the property. The argument alerted two men who were

working at the centre; they ran into the rear car park where they saw the offender get into a red toyota motor vehicle. Both men

tried to extract the offender from the car. During the struggle the offender shouted “I’ll stab you, I’ll stab you” and his right shoe

came off. The offender then got the car started and reversed causing both men to be thrown from the car. The car stopped and then

was driven over the head and chest of one of the men, Charles William Tandy. A student ran over to the toyota motor car and told

the driven he had hit someone. The driver ignored him and drove off. About nine students witnessed the incident. Mr. Tandy was

taken to hospital where he died from his injuries. A suspect, Jason Thomas Brady, was identified. The allegation of murder is under

investigation by the police authorities in England.

The Letter of Request stated, inter alia:-

“The police in England are anxious to obtain any evidence that can link JASON BRADY with the murder and other offences. The

investigating officers in England would therefore ask that they be permitted to carry out the following enquiries in Ireland:

1. To invite Jason Thomas Brady, to be interviewed under caution, concerning his movements on Monday the 10th

December and his involvement in the burglary, the murder of Mr. Tandy and wounding of Mr. Hillstead.

2. Further to interview Brady concerning his involvement in the theft of a red toyota motor vehicle R253 VVP (4DCJ) and

its movements between its taking on the 23rd November and the time of the murder.

3. To arrange for Jason Brady to be medically examined for any injuries he may have sustained during the incident.

4. To request a current photograph of Mr. Brady

5. To request a current DNA sample of Mr. Brady.

6. To request a set of fingerprints from Mr. Brady.

7. To serve him with the appropriate documents under the Codes of Practice under the Police and Criminal Evidence Act

1984 in relation to identification procedures.

8. To seize all clothing attributable to Jason Brady and secure it in a manner which will allow a subsequent examination of

the clothing by Forensic Scientists

9. That enquiries be made to establish any subscriber or registration details relating to any mobile telephone used by or

seized from Jason Brady and obtained billing details relating to the usage of this mobile telephone for the period from the

23rd November 2001 to the 19th December 2001.

10. To make inquiries with and take statements from family members and associates of Jason Brady in Ireland as to his

return date to Ireland and any other information relevant to this inquiry

11. To make inquiries and take statements in relation to any alibi that Jason Brady may provide during any interview under

caution.

12. To obtain Warrants to search any addresses provided by Jason Brady in Dublin where it may be suggested he has

resided during the period covered by this investigation.

13. To conduct any other inquiries and interview any other witnesses that are identified in or may become relevant or

necessary in the course of the investigation and arising from any of the inquiries listed above.

In relation to the above enquiries paragraphs 1 to 6 it is accepted that Jason Brady may only be invited to co-operate in the

procedures set out. It is also accepted and desired that he should be given the opportunity of seeking legal advice from a lawyer of

his choice who can advise him on the position in both English and Irish Criminal jurisdictions insofar as they are applicable.”

A further letter was sent to Ireland dated 21st February, 2002. This gave up-to-date information on the enquiries into the murder in

England. This included the information that the Police had sample DNA relating to Jason Thomas Brady and two sets of his fingerprints.

Arising from the information the enquiries then indicated:

“The Nike “Tailwind” training shoe referred to in the summary of facts was found to show a mixed DNA profile. The profile was a

mix relating to 3 separate persons, one an unidentified man, secondly, an unidentified female and the third has been identified

as a match to the DNA held by the National DNA Database relating to Jason Thomas Brady.

A witness recalls that the driver of the toyota motor car R253 VVP vomited out of the driver’s window of the vehicle as it was driven

away. Examination of vomit / spit recovered from the rear offside window and door of the toyota motor car has been identified

through its DNA components as matching DNA held on the National Database relating to Jason Thomas Brady.

A book found inside the toyota motor car following its abandonment has a fingerprint, which has been identified as identical to that

held on the Fingerprint Database and relating to Jason Thomas Brady. Additionally two further fingerprints identified to Jason Thomas

Brady by the same means have been found on the outside of the driver’s window of the toyota motor car in an inverted position and

consistent with what witnesses describe his doing in attempting to keep the car door closed as he drove away.

The grab handle on the inside passenger door of the toyota motor car shows a mixed DNA profile relating to 3 separate individuals.

Again, one of those individual DNA profiles has been found to be a match to the DNA sample held in relation to Jason Thomas Brady.

Witnesses describe the man in the toyota motor car as hanging on to the passenger side door grand handle in an attempt to prevent

his removal from the vehicle prior to his driving it away and killing Mr. Tandy.”

Reference was made to the proposed procedure under s.51 of the Act of 1994 and the authorities were requested to utilize the

procedure in relation to the items requested at 3,4,6,8 and 9 of the letter of request dated 20th December, 2001.

The letter continued:

“I thank the Gardai for making enquiries on our behalf with the occupants of the premises from which Mr. Brady was arrested. I

note that those were his sister Natalie and his brother-in-law Anthony McDonnagh. I am obliged to you for pointing out the

recent High Court finding relating to the lack of sanctions under the legislation in the event of the failure of a witness to answer

question put to him or her but would however ask you to consider proceeding along the court route in relation to section 51 and

Natalie and Anthony McDonnagh.”

14. Statutory Scheme

The statutory scheme providing for mutual assistance is to be found in the Act of 1994. Section 51 of the Act of 1994 provides:-

“51.-(1) This section shall have effect where the Minister receives-

(a) From a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting

authority in such a country or territory, or

(b) From any other authority in such a country or territory which appears to him to have the function of making requests

of the kind to which this section applies,

A request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or

a criminal investigation that is being carried on, in that country or territory.

(2) If the Minister is satisfied-

(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable

grounds for suspecting that such an offence has been committed, and

(b) That proceedings in respect of that offence have been instituted in that country or territory or that an investigation

into that offence is being carried on there,

He may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which

the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.

(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) (a) and (b) of this section the Minister

may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be

appropriate.

(4) In this section ‘evidence’ includes documents and other articles.”

15. Mutual Assistance under the Convention

The Act of 1994 enables the obligations undertaken by the State in the European Convention on Mutual Assistance in Criminal Matters

and the Protocol on Mutual Assistance to be fulfilled under domestic legislation. This Convention is, as stated in the Preamble, “to

achieve greater unity among” members of the Council of Europe, in the belief that “the adoption of common rules in the field of mutual

assistance in criminal matters will contribute to the attainment of this aim.” It is reasonable to construe this intention to the

Oireachtas in incorporating the Convention within the domestic law of Ireland by the Act of 1994. This construction is supported by

the words of the preamble which state “An Act …to make provision for international co-operation in respect of certain criminal law

enforcement procedures…”. Consequently this legislation was enacted by the Oireachtas with the intention of establishing common

rules to support the development of mutual assistance between the states. It should be construed accordingly.

16. Safeguards under the Act

The Convention provides for mutual assistance between different jurisdictions, which have different legal systems. The safeguards

inherent in the system are as follows:

(i) The request must go to the Minister to be screened;

(ii) The request must come from a court or tribunal exercising criminal jurisdiction or a prosecuting authority or from an authority

which appears to the Minister to have the required function;

(iii) The request for assistance must be in relation to, and must so specify, either a criminal proceedings which has been

instituted, or a criminal investigation which is being carried out, in the requesting State;

(iv) The assistance relates only to the specific request;

(v) The Minister has to be satisfied: (a) that an offence under the law of the requesting country has been committed or that

there are reasonable grounds for suspecting that such an offence has been committed, and (b) that proceedings have been

instituted or that an investigation into that offence is being carried out;

(vi) The Minister has to nominate a Judge of the District Court to receive such evidence;

(vii) The said nominated person receives such of the relevant evidence to which the request relates as may appear to the

nominated person to be appropriate for the purpose of giving effect to the request;

(viii) The procedure is subject to judicial review by the High Court, and, as here, an appeal to the Supreme Court.

17. Proceedings before nominated person

Section 51(6) provides that the Second Schedule to the Act shall have effect with respect to the proceedings before the nominated

person. It states:

“Securing attending of witnesses

1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the

District Court has for the purpose of any other proceedings before the court.

Power to administer oaths

2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.

Privilege of witnesses

3. (1) a person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give-

(a) In criminal proceedings in the State, or

(b) Subject to subparagraph (2) of this paragraph, in criminal proceedings in the country or territory from which the

request for the evidence has come.

(2) Subparagraph (1) (b) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving

the evidence is conceded by the court, tribunal or authority which made the request.

(3) Where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions of this

paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court,

tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it,

upholds the claim.

(4) Without prejudice to subparagraph (1) of this paragraph, a personal shall not be compelled under this schedule to give any

evidence if his doing so would be prejudicial to the security of the State; and a certificate signed by or on behalf of the Minister

to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact.

(5) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this schedule to give any

evidence in his capacity as an officer or servant of the State.

(6) In this paragraph references to giving evidence include references to answering any question and to producing any

document or other article and the reference in subparagraph (3) of this paragraph to the transmission of evidence given by a

person shall be construed accordingly.

4. (1) the evidence received by the judge shall be furnished to the transmission to the court, tribunal or authority that made

the request.

(2) If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate, affidavit or

other verifying document, the judge shall also furnish for transmission such document of that nature as may be specified in the

notice nominating the judge.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other

article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in

order to comply with the request.

Supplementary

5. For the avoidance of doubt it is hereby declared that the Bankers’ Books Evidence Act, 1879, applies to the proceedings as it

applies to other proceedings before a court.

6. No order for costs shall be made in the proceedings.”

18. “Evidence”

Section 51(1) of the Act of 1994 refers to a situation where the Minister receives a request for assistance “in obtaining evidence” in

connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on. Section 51(4)

states that in this section “evidence” includes documents and other articles. Other than the inclusion of documents and other articles

in the term “evidence”, it is not defined. The Act of 1994 and the Convention clearly anticipate assistance both in providing evidence

for a trial and requests (preliminary to prosecution) relating to investigations.

The term ‘evidence’ in the Act of 1994 should be construed in context. I am satisfied that the term ‘evidence’ is to be distinguished

from our law on evidence. The law of evidence determines how facts may be proved in a court of law. The law varies from jurisdiction

to jurisdiction. If the term is used in relation to court proceedings then the relevant law is that of the state in which the proceedings

are taking place. The “evidence” sought in this case is for an investigation. The term is used to cover “evidence” relevant to an

investigation, as here, and so may be wider than “evidence” for a trial.

A similar analysis of the term ‘evidence’ in this context has been made elsewhere. In England and Wales a flexibility in the concept of

evidence in this type of context has been accepted. The analysis arises in the context of a scheme for mutual assistance. It includes

material which may not ultimately be evidence at a trial. This purposive approach is consistent with the Convention and Protocol. In

considering this approach in R v. Secretary of State for the Home Department, ex p Fininvest Spa [1997] 1 W.L.R. 743 at p.752

Simon Brown LJ stated:

“… it was not until the Act of 1990 that a provision was made for obtaining evidence in connection with “a criminal investigation,”

providing only, as section 4 makes plain, that the Home Secretary is satisfied both that an investigation into a particular offence is

being carried on and that there are reasonable grounds for suspecting that it has been committed. Inevitably there is some flexibility

in the whole concept of evidence; not even the applicants submit, for example, that what may be sought under the Act of 1990 must

be “likely to be material evidence …” within the meaning of section 97(1) of the Magistrates’ Courts Act 1980 as explained in Reg. v.

Reading Justices, Ex parte Berkshire County Council [1996] 1 Cr.App.R. 239. When, therefore, one is speaking of “evidence” in the

context of a criminal investigation, the permissible area of search must inevitably be wider once that investigation is complete and the

prosecution’s concern is rather to prove an already investigated and “instituted” offence.

The Criminal Justice (International Co-operation) Act 1990 in short created a wholly new scheme for mutual assistance with regard to

criminal investigations, a scheme under which it would plainly be necessary to examine altogether more material than would ultimately

constitute evidence at any trial. True, the word “evidence” continues to be used, but Parliament cannot thereby have intended to

confine assistance within the relatively narrow limits prescribed by the Westinghouse case and in re State of Norway’s Application.

That in effect would be to defeat the very change being brought about by the Act of 1990. The terms of article 1 of the 1959

Convention should in this regard be noted:

“(1) The contracting parties undertake to afford each other, in accordance with the provisions of this Convention, the widest

measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for

assistance, falls within the jurisdiction of the judicial authorities of the requesting party.”

In my judgment, that consideration of itself is sufficient to defeat the applicants’ central contentions here with regard to the width of

disclosure sought in this case.”

I would adopt and apply this analysis of the word “evidence”. There needs to be a degree of flexibility in the concept of the term

“evidence” under the Convention and our domestic legislation. While the cases of England and Wales are not binding authority for our

analysis, as they are based also on the same Convention their approach, referring to the Convention, is of assistance. I am satisfied

that the Oireachtas cannot have intended a narrow definition of the term “evidence”. I too note the words of Article 1 of the

Convention and especially “the widest measure of mutual assistance …”

19. Investigation

The request in this case has been made in relation to a criminal investigation being conducted in England, where certain allegations

are under investigation. The police in England request that “enquiries” be made in Ireland: see Letter of Request, 20th December,

2001. The applicant has not been charged with any offence. No trial proceedings have been commenced. The request relates only to

the investigatory stage of a criminal process. I am satisfied that it would not be appropriate to address in this case a hypothetical

situation, where “evidence” would be sought for criminal proceedings; that is not this request. I leave over to an appropriate case,

where evidence for criminal proceedings in a requesting state is in issue, considerations relevant to such a request.

In this case the Minister is specifically requested to assist in investigations. Should there be an issue of evidence at a trial in England

at a later date then further steps would be required. There is nothing in the circumstances of this request which indicates that the

fundamental rights of the applicant will be impinged in any way.

20. Minister satisfied to assist regarding certain items

The Minister was satisfied that an offence had been committed and that an investigation into that offence was being carried out. The

Minister decided to utilize s.51 of the Act of 1994 to assist on items 3,4,6,8 and 9 referred to in the Letter of Request, 20th

December, 2001. These were:

(a) To arrange for the applicant to be medically examined for any injuries he may have sustained during the incident;

(b) A current photograph of the applicant;

(c) A set of fingerprints of the applicant;

(d) All clothing of the applicant, secure so as to allow for subsequent forensic examination of the clothing by forensic scientists;

and

(e) Any subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing details

relating to usage of the mobile phone for the period from 23rd November 2001 to 19th December, 2001.

20.1 Items in issue

These are the matters originally sought and which were originally in issue on this appeal. However, as is referred to elsewhere in this

judgment, the Minister withdrew (a), the medial evidence, from the proposed assistance and indicated that it would not be the object

of any assistance to England. Thus at issue are the photograph, fingerprints, clothing and mobile phone details.

21. Nomination

The Minister having originally formed the view that items 3,4,6,8 and 9 referred to in the Letter of Request could be proceeded with

by way of application under s.51 of the Act of 1994, he so informed the Judicial Co-operation unit of the United Kingdom Central

Authority in Criminal Matters, and, in accordance with s.51 (2) of the Act of 1994, the first named respondent was nominated “To

receive such of the evidence to which the above request relates as may appear to the Judge to be appropriate” for giving effect to

the request. In accordance with paragraphs 4(1) and (2) of the Second Schedule to the Act of 1994 it was requested that the

evidence be furnished to the Department “for transmission to the U.K. Authorities.”

22. Section 51 Process

The first named respondent had legal authority under s.51 of the Act of 1994 to proceed, however, the process under s.51 of the Act

of 1994 is limited. The nominated person may “receive such of the evidence to which the request relates”, s.51 (2) (b). It is not a

wide ranging investigative role. The designated person is not an investigating judge. Within the terms of the request, and the items

referred to, the delegated person, the first named respondent, is required to receive such of the evidence to which the request

relates as may appear to him to be appropriate for the purpose of giving effect to the request. Thus the s.51 procedure is a statutory

procedure, not a trial. It is a process consistent with international principles as to mutual assistance between States.

23. Confusion

It is within this legal context that the request was received for mutual assistance. The one thing that is crystal clear in this case is

that there has been considerable confusion. There was confusion during the hearing before the first named respondent. The hearing

had the trappings of a court proceedings, yet it is not. The documents prior to and resulting from the hearing have the appearance of

District Court documents, yet it is not a District Court hearing. Indeed, the general confusion continued even before this Court on

certain matters, notably the medical evidence. This confusion has made the case appear more complex.

24. Court Trappings

The application pursuant to s.51 of the Act of 1994 proceeded with many of the trappings of a court hearing. This was erroneous. For

example, the decision of the first named respondent had at the top left hand corner of the sheet of paper the following:

“Judge Haughton,

Court No. 50, Richmond Courthouse,

Mutual Assistance Application”.

Then set out were the words:

“The Prosecutor; The Director of Public Prosecutions at the suit of …” Underneath appear the words

“Accused; Jason Brady”.

In the body of the decision, all of which appears under a heading,

“Courts Act, 1971,

Section 14

Certified Copy of Order”

It is stated:

“On the 25th day of March 2002 at the sitting of the Metropolitan District Court at District Court No. 50, Richmond Courthouse,

North Brunswick Street, Dublin 7, before one of the Judges of the said District Court assigned to the said District an order was

made to hand over all items in Police Property application other than rings and photo albums. Items to be transferred to

investigating authorities including roll of film and fingerprints and photograph of Mr. Brady”

The process was held in a courtroom in a court building, yet it was not a court hearing. No explanation was given that it was not a

court hearing. The documents incorrectly have the trappings of a court hearing. For example, a “Witness Summons” was headed “The

District Court,” and the decision was headed “The District Court.” Evidence was given on oath, with no explanation that it was not a

court hearing.

The whole process was such that it had the appearance of a District Court hearing, which was incorrect. A lay person, for example, a

doctor, requested “to give evidence”, may well have assumed it was a court hearing. These problems may have arisen because of the

complexity of fitting into a common law system a procedure more akin to a civil law system where, for example, there may be a

judicial officer who investigates a crime. However, under our legal system this is a special statutory process established under s.51 of

the Act of 1994.

25. Notice

The fundamental issue raised by the applicant is that he was not given notice of the application under s.51 of the Act of 1994. The

Letter of Request stated that it was “accepted and desired” that the applicant should be given the opportunity of seeking legal

advice from a lawyer who could advise him on the position in the English and Irish criminal jurisdictions. However, the issue of whether

or not the applicant is entitled to notice of such an application must be determined under Irish Law, and irrespective of any such

reference in the Letter of Request. The statement as to legal advice was made in the context of a request for assistance on thirteen

matters, five only of which the Minister was satisfied to send to the nominated person, and one more of which was then excluded by

the Minister on this appeal. Further, in relation to some of the inquires it was stated that it was accepted that the plaintiff could only

be invited to co-operate.

As I have already pointed out, this request relates to the investigative stage of the criminal process, the initial stages of the criminal

process. At this stage of the criminal process if enquiries were being made in Ireland the Garda Síochána would give no notice to the

applicant of any assistance being given between different branches of the Garda Síochána. It is not common practice nor is it

required under the Constitution that a party be given notice of ongoing Garda investigations.

Under the Convention it is proposed that mutual assistance be enabled between police authorities of the different States. While

respecting the rights of the individual under investigation, it is anticipated that one police force will assist another. The type of

assistance will depend on the circumstances of each case. There may be the formal procedure of extradition and the appropriate

statutory procedure will be applied. There may be procedure under the European Arrest Warrant Act, 2003. Or, as here, there may be

a request for mutual assistance by the provisions of documents. This type of request for assistance may also vary. Thus it may, as

here, be at the initial stage of an inquiry, at the investigation stage, or it may be a request when criminal proceedings have been

instituted. In each case a balance has to be achieved. This balance is achieved through safeguards, at several levels. I have set out

previously the safeguards under the procedure of the Act of 1994.

I am satisfied that prima facie the applicant is not entitled to notice of a request for mutual assistance at the investigative stage of

criminal proceedings. There may well be exceptions, but, in general, at the investigative stage of the criminal process, the Garda

Síochána are not required to inform a suspect of on-going enquiries in Ireland, or elsewhere, and a similar approach applies to a

request such as is in issue here.

On behalf of the applicant it was submitted that as a matter of principle that notice is required to be given of assistance such as is

proposed in this case. I am satisfied that no such general principle exists. It was open to the applicant to prove exceptional

circumstances which would require him to be given notice, but this was not done, nor would it appear relevant in this case. There are

no exceptional circumstances such as to make the applicant an exception to the general rule.

Consequently I would dismiss the applicant’s appeal on this ground in relation to the photograph, the set of prints, and the clothing.

The medical examination documents have already been excluded. The only remaining category is the mobile phone details.

The request was for subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing

details relating to usage of the mobile phone during the period 23rd November, 2001 to 19th December, 2001. Under the statute the

first named respondent is required to receive the items of evidence to which the request relates. While he is given some discretion, to

receive such of the evidence to which the request relates as may appear to our appropriate for the purpose of giving effect to the

request, it is not a wide ranging investigative discretion. Indeed in all the circumstances of this pretrial situation, it is a discretion

which should be exercised carefully and the statute construed strictly. Consequently, only the items requested should be received, or

those “to give effect” to the request. In this case the mobile phone was included in the decision of the first named respondent. I am

satisfied that this was in error, it was not sought and there was no evidence that it could “give effect” to the request. I agree with

the determination of Murray C.J. that the mobile phone should not be included in the items provided on foot of the request.

Thus, subject to the medical reports and the mobile phone itself, I would dismiss the applicant’s appeal on this ground. The

circumstances may be different if there is a request for evidence for the purpose of a trial in being in another jurisdiction. However,

that is not the situation in this case. As such is an important issue I am satisfied that a decision on such a request should await legal

argument in an appropriate case.

26. Administration of Justice

The applicant submitted that the hearing of the application pursuant to s.51 of the Act of 1994 is the administration of Justice. I am

satisfied that the High Court was correct in determining that such a hearing was not the administration of justice and I would dismiss

this ground of appeal.

The parameters of the administration of justice have been addressed by this Court in many cases. Criteria have been set out, see for

example McDonald v. Bord na gCon [1965] I.R. 217 at 230. In this case the circumstances are of an enquiry during police

investigations. It is a preliminary investigation, part of the investigative stage of a criminal process, albeit in relation to a criminal

process in another jurisdiction of a crime in another jurisdiction. It is a specific statutory form of procedure, it is not the

administration of Justice. Consequently, I would dismiss the appeal of the applicant on this ground also.

27. Fair Procedures

Even though the designated person is not administering justice in hearing the s.51 application, fair procedures should be applied. The

appropriate fair procedures depend on the type of hearing and the circumstances of the case. In general, fair procedures do not

require a person to be informed of steps being taken by a member of the Garda Síochána who is investigating a crime. Thus, if the

property in issue was being considered by a forensic authority in Ireland for the purpose of an investigation here, the applicant would

not be given, or be entitled to be given, notice of the steps being taken during such an investigation. Of course, later he could query

any such steps in a trial if such evidence is presented to the court. The difference is that in this case the evidence would be sent out

of the State to another jurisdiction for an investigation in that State. Given the scheme of the Convention and domestic legislation,

that alone is not sufficient to assist the applicant. The Convention and legislation clearly anticipates such actions.

No issue arose before this court as to the method by which the property came into the possession of the Gardaí. For the purpose of

this case I am satisfied that the property is legally in the possession of the Gardaí.

In this context, fair procedures, the applicant submitted that he was entitled to notice. However, I am satisfied that it would be

introducing something which is not on the face of the Convention or in the Irish legislation, to require, in every case, that notice be

given, to the person being investigated, of the s.51 application. I am satisfied that in general the law does not require notice to be

given of a s.51 application, to the person being investigated. The issue then is whether notice should be given in exceptional

circumstances, and whether there are exceptional circumstances in this case. The circumstances thus fall to be considered by the

Court on this review.

In this case, where the decision on the request for mutual assistance relates to photographs, fingerprints, clothing and mobile phone

details, I am satisfied that there is no requirement to give to the applicant notice of the s.51 application. The fact that errors were

made, confusion reigned, and court trappings were added to an earlier stage, do not govern the decision on the law on this appeal.

Such issues may well be relevant to consequential orders, such as costs.

28. Medical Records

The medical evidence requested was that the applicant be medically examined for any injuries he may have sustained during the

incident under investigation. Clearly, this request related to the time proximate to the incident.

However, there was confusion in response to this request. First, on the documents, with their court trappings, it would be reasonable

for a doctor to have assumed that he was giving evidence in court. The nature of the application was not explained to him. The issue

as to the duty of the doctor to his patient in such an application was not analysed or a decision made. The privilege of the patient in

general or specifically under s.51 (6) was not addressed adequately either.

In this case there was a request initially for medical records. In general, the designated person may receive such of the evidence to

which the request relates as may appear to him to be appropriate for the purpose of giving effect to the request. First, the

designated person should address that which is requested. Then, within the ambit of the terms of the request, he may receive that

which appears appropriate to give effect to the request. The procedure does not provide a general fishing expedition for the

requesting State. Nor is it a fishing expedition for the designated person. He is not an investigating judge. He is limited to the terms of

the request, which includes the precise terms appropriate to give effect to the request.

There was great confusion in this case in relation to the seeking of medical records. The information sought and given before the

designated person was wider than the request, and even wider than to give effect to the request. Importantly, from the wording on

the documents, it could reasonably have appeared to have been a court sitting and it was not explained to the doctor that it was not

a court sitting. This aspect of the application before the designated person was addressed incorrectly. However, that is not now in

issue on this appeal.

Members of this Court raised concerns during the hearing of the appeal on this aspect of the case. After the break for lunch counsel

for the Minister informed the Court that he was instructed that the Minister had decided that he would not transmit the medical

records of the applicant, neither the evidence of the doctor nor the records, to England. I am satisfied to consider this as an

undertaking to the Court.

Therefore the issues arising on this matter as to the extent of the jurisdiction, the specific doctor/patient relationship, and the law on

mutual assistance, are moot. As this aspect of the initial case raises important issues I consider that they should await a case where

the facts may be determined and the law fully tested in the trial court before the issue is considered on appeal.

29. Undertakings

Undertakings are routinely given in proceedings before the courts. In this case an undertaking in relation to the medical evidence

(that the evidence would not leave the State) was given on behalf of the Minister.

The Minister has a key role, including under s.51 of the Act of 1994, by which the State implements Ireland’s obligations under the

comity of nations and international conventions. In such circumstances, where issues relating to persons and their constitutional

rights may be relevant factors, it may be appropriate in certain cases for undertaking to be given to a court as to the evidence in

issue.

Undertakings may be given in proceedings relating to applications such as has arisen in this case. No inherent difficulties arise in this

case on the issue of undertakings. A potential concern may need to be specifically addressed in a future case if an undertaking is

sought or given by persons in another jurisdiction. However, this is not in issue here. Should it arise in the future I am of the opinion

that it is not an insurmountable problem. Undertakings are given in other types of actions in relation to proceedings in other

jurisdictions. See, for example, the jurisprudence which has developed in Ireland and England on undertakings in proceedings arising on

the cases on the abduction of children across State borders.

31. Constitutional Rights

The applicant has constitutional rights which may not be abrogated. His rights of access to the Courts, privacy, etc., are extant. In

the circumstances of this case his position is not such as to require intervention on his behalf by the Court.

32. Police (Property) Act 1897

Counsel for the applicant submitted and stressed that the applicant had sought to make his application under the Police (Property)

Act 1897 prior to the authorities moving the s.51 application. The facts of this case establish that it was coincidental that the s.51

application (which had commenced months earlier as seen in correspondence cited previously) came to court just prior to the

application of the applicant under the Police (Property) Act, 1897.

Nothing in the Police (Property) Act 1897 gives to the applicant a right to his property in circumstances where there is a criminal

investigation in being. Property lawfully obtained by the Garda Síochána, as in this case, may be retained for a criminal investigation.

This is a clear matter of public policy. I am satisfied that the proceedings under the Act of 1994 were not brought to frustrate the

application under the Police Property Act. Consequently the applicant has not established any basis to succeed and I would uphold

the decision of the High Court and refuse his appeal on this ground.

33. Constitutionality of the Act

The High Court held that the applicant’s claim that the Act of 1994, and in particular s.51, is invalid having regard to the provisions of

the Constitution must fail. On this appeal it was submitted that s. 51 of the Act of 1994 is repugnant to the Constitution as it allows

the procurement, under apparent compulsion, of evidence which could not otherwise be procured without a court order or a judicial

determination and may allow orders to be made adversely affecting a citizen’s constitutional rights without any requirement of prior

notice to him despite the absence of exceptional circumstances.

For the reasons given I am satisfied that the delegated person, the first named respondent in this case, is not administering justice.

Further, in this case there was no breech of fair procedures by the absence of notice of the applicant. The Act of 1994 relates to

mutual assistance in criminal matters between States. Such mutual assistance may arise in many different circumstances. In this case

the Letter of Request relates to enquiries at the investigative stage of the criminal process.

The approach to the analysis of the constitutionality of an Act is well established. First, there is the presumption of constitutionality

of the Act of 1994. Secondly, there is a burden on the applicant to establish the repugnancy of the Statute. Thirdly, any repugnancy

must be established clearly.

This statute brings into domestic law the obligations undertaken by the State in the Convention on Mutual Assistance in Criminal

Matters, and while the applicant has a constitutional right to submit that such legislation is unconstitutional, any such

unconstitutionality should be established clearly. Fourthly, if there is more than one construction of the legislation reasonably open,

then it must be presumed that the Oireachtas intended the constitutional construction. Fifthly, there being no express words

excluding notice to the applicant (a major issue in the submissions) it may be assumed that in appropriate cases a court would require

notice to be given. As stated in East Donegal Co Operative Ltd v. Attorney General [1970] IR 317:

“An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in

accordance with the Constitution; and it is not only a question of preferring a Constitutional Construction to one which would

be unconstitutional where they both appear to be open, but it also means that an interpretation favouring the validity of an Act

should be given in cases of doubt.”

In this case the Act of 1994 is presumed constitutional. The ground raised by the applicant for its invalidity is that of a requirement

for notice to be given to him. For the reasons given, I am satisfied that notice was not required in relation to the request for mutual

assistance in the police enquiries. I leave over for another case the issue of whether notice would be required when evidence is

sought for production at a trial in another jurisdiction.

The Act is silent as to the issue of notice. The investigation in this case is not the administration of justice, and, as I have held

earlier, the applicant is not entitled to notice. No other ground being advanced this aspect of the appeal fails also.

32 Conclusion

This case relates to a request for limited purposes, a request for assistance in a criminal investigation. The Minister gave his consent

to the transfer of items for this purpose only. There is no question of the evidence as such being used in a trial. I would affirm the

judgment of the High Court, subject to the variation as to the mobile phone, and the undertakings on the medical evidence.

I agree with the order proposed by Murray C.J. I would allow the appeal insofar as to grant a declaration that the Minister is not

entitled to transmit to the police authorities in England the mobile phone. I would accept the undertakings given by counsel on behalf

of the Minister as to the medical records. I would disallow the other grounds of appeal.