Supreme Court dismisses appeal regarding s.51 Criminal Justice Act 1994 repugnancy and evidence gathering for UK transfer.

THE SUPREME COURT

282/03

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

JASON BRADY

Applicant

and

DISTRICT JUDGE GERARD HAUGHTON

and

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 29th day of July, 2005.

1. I have read the judgment of the Chief Justice and I agree that the appeal should be disposed of in the manner he proposes. I have

prepared a judgment of my own firstly because the case illustrates certain issues, some of quite a fundamental nature, which may

arise again on an application of this nature. Secondly, certain factual and procedural aspects of the present case seem to me to

require specific notice. Thirdly, I take a different view from some of my colleagues on a particular point – the purpose of the evidence

gathering exercise described below. While subsequent events may have rendered this irrelevant, I think it important enough to require

me to address it.

2. This is the applicant/appellant’s appeal from the judgment and order of Ó Caoimh J., delivered the 22nd July, 2003. By this order

Ó Caoimh J. quashed an order purportedly made by the first-named respondent on the 25th March, 2002, refused a declaration that

s.51 of the Criminal Justice Act, 1994 is repugnant to the Constitution and refused the other relief sought by the applicant, including

reliefs restraining the transmission to the third-named respondent, for onward transmission to the United Kingdom authorities, of

certain items and records.

The factual and procedural background.

3. It appears that on the 24th December, 2001 the Department of Justice received a letter of request dated the 21st December, 2001

from the Crown Prosecution Service, West Midlands, Birmingham, England. This was a request pursuant to the provisions of the

European Convention on Mutual Assistance in Criminal matters (1959). By Article 1 thereof it is provided that:-

“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 relation to 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”.

4. Article 3 provides:-

“The requested party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and

addressed to it by the judicial authorities of the requesting party for the purpose of procuring evidence or transmitting article to

be produced in evidence, records or documents”.

5. Sections 51-55 of the Criminal Justice Act, 1994 relate to the taking of evidence in the State for use outside the State and the

making of requests by the State. The term “evidence” is defined to include documents and other articles.

The request.

6. The letter of request was not produced in full in these proceedings: the material under the heading “Assistance required” was

blanked out. Despite this, the letter is a very detailed one. It describes an episode on the 10th December, 2001, in a college in

Birmingham. A student saw a person carrying property, including a lap top computer, which was his. The person with the property ran

away when challenged by its owner. Two staff members saw a person getting into a motor car and tried to stop him getting away.

The escaping person threatened them and there was a struggle in which he lost a shoe. However he started the vehicle, got away

from the men, and then drove it forward striking one of them. This unfortunate man died about an hour later.

7. The driver of the vehicle was physically described and was noted as being in his early twenties with an Irish accent.

8. Apart from the portion which is blanked out, the letter of request asked that the applicant be interviewed under caution about the

incident described and about his connection with the vehicle; that he be medically examined for any injuries; that a photograph of him

be supplied; that a DNA sample be supplied; that fingerprints be supplied; that “all clothing attributable” to him be seized and

secured; that details of any mobile phone used by or in the possession of the applicant, together with billing details for a specified

period be established; that his family and associates be interviewed with a view to establishing what date he returned to Ireland and

any other relevant matters, as well as other inquiries.

9. The letter of request also had the following text:-

“In relation to the above inquiries paragraphs 1-6 it is accepted that Jason Brady may only be invited to cooperate in the

procedure 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 in so far as they are applicable”.

10. On the evidence, no step was at any time taken to comply with the desire expressed in this paragraph.

Steps taken on foot of this request.

11. The applicant’s solicitor says without contradiction that on the 25th January, 2002 his client was being taken in custody by prison

officers from Circuit Court No. 8 to Circuit Court No. 29. He was chained to them. He was approached by a Detective Garda from

Ballymun Garda Station who did not caution the applicant or ask him if he had legal advice in relation to the matter of the request, or

if he was legally represented, but challenged him and demanded samples for forensic analysis in connection with his alleged

involvement in an offence in England. He asked the applicant to agree to give items of his clothing, a blood sample, DNA sample,

fingerprints and photographs. He also asked him if he would agree to speak to members of the West Midland’s Police Force. The

applicant said he would not. The solicitor also says that the applicant had been arrested on the 19th December, 2002 on foot of 24

extant warrants at his sister’s residence in Tallaght. The applicant says that at the time of his arrest clothing and other property

were seized from him by gardaí who said that they were required in connection with the investigation of a burglary offence in Ireland.

On the 28th January, 2002 the applicant gave notice of an application under the Property Act, 1897 in relation to this property and

obtained a return date of the 26th March, 2002 in the Dublin District Court for the hearing of this application.

Second request.

12. It is clear from the affidavits that there was further correspondence between the Department of Justice and the Crown

Prosecution Service, but this is not exhibited. However, on the 21st February, 2002 the Crown Prosecution Service, West Midlands,

made a further request. Again, this letter is not exhibited in its full original form. From what is exhibited, however, it is clear that the

Crown Prosecution Service had been told that the Irish authorities were “proposing to set up a hearing under s.51 of the Criminal

Justice Act, 1994”. It is not clear from which side this proposal emanated. The CPS asked that that procedure be used in relation to

the items requested at particular reference numbers of the earlier request. They also asked that the applicant’s sister and brother-in-

law be summoned to court to answer questions about when the applicant returned to Ireland and certain other matters.

The Section 51 Hearing.

13. The hearing under s.51 was arranged for the 25th March, 2002 before the first-named respondent. It is common case that no

attempt was made by the authorities to put the applicant on notice of this. However, witness summonses were served on Dr. Noel

Browne, a medical officer attached to Clover Hill prison and on Nathalie and Anthony McDonagh. All summonses are in common form,

varying only in relation to the name of the person summoned and the matters on which they were to be questioned, or the items

which they were to bring. Dr. Browne was ordered to “attend at the sitting before a judge of the District Court to be held at Court

50, Richmond Hospital, North Brunswick Street, Dublin 7 on the 25th March, 2002 at 2pm and on any day to which the hearing of

these proceedings shall be adjourned to give evidence (which includes documents and other article) in connection with the aforesaid

criminal proceedings, in relation to the following matters:

(a) All medical examinations carried out by you upon Jason Thomas Brady.

And you are required to bring with you the following documents and other articles in respect of the above account.

(1) All notes or memoranda of medical consultations held by you with Mr. Jason Thomas Brady,

(2) All statements and records to include reports prepared by you for and on behalf of Jason Thomas Brady”.

14. The applicant’s sister and brother-in-law were summoned to address the following questions:-

“(a) On what date in December, 2001 did Jason Brady return to Ireland,

(b) How did Jason Brady return to Ireland at the afore-mentioned time?

(c) Where and when did you meet Jason Brady on his return to Ireland and did he inform you of the reason for his return?

(d) Did Jason Brady discuss with you the events of the 10th December, 2001 at BEF Technology Centre, Birmingham in the

United Kingdom?”.

15. These witness summonses are all dated the 19th March, 2002. It will be observed that the return date of these summonses was

the day before that fixed for the hearing of the applicant’s police property application.

16. It appears from the transcript of the hearing of 25th March, 2002 that a witness was also examined in relation to the accused’s

mobile phone records, but this person’s name is illegible on the transcript.

Order made after the hearing of the 25th March.

17. The applicant’s grounding affidavit exhibits an order purportedly made by the first-named respondent on the 25th March, 2002.

This is headed “Courts Act 1971, Section 14” and beneath that “Certified copy of Order”. The order which then follows is entitled

“Prosecutor: The Director of Public Prosecutions at the suit of .....”. This blank is unfilled. On the next line, “Accused: Jason Brady.”

The curial portion of the order is as follows:-

“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”.

18. The second and third-named respondent, through their counsel, stated that they were unaware that this order had been drawn

up. They apparently made no objection to it being quashed and certainly did not appeal against its quashing.

19. However, it appears to be common case that the items the subject of the police property application, perhaps with the exception

of the rings and photo albums, remain in the custody of the second or third-named respondents.

Medical records.

20. Dr. Browne attended in answer to the summons served on him. A transcript of his examination was exhibited in these proceedings.

The third-named respondent was represented by counsel who outlined the request. Dr. Browne was sworn and said that he had the

original medical records of the applicant in his possession, but no copy. He was asked to provide a copy “for the next date” and

agreed to do so. Counsel for the Minister then asked to inspect the medical records and they were handed to him. Dr. Browne

confirmed that they were all the medical records of the applicant he ever had. He also said that he had a photograph of the applicant

but he did not wish to produce it because “We generally don’t allow those photographs outside afterwards. We keep them especially

for maintenance programmes, we do a lot of methadone maintenance programmes”. Counsel then asked for a direction from the first-

named respondent that the photograph “be photocopied for the purpose of transmission” and the first-named respondent made that

direction. The doctor was then asked to explain the nature of the medical records to which he did, giving details of certain medical

conditions of the applicant in the course of his evidence. These details, or some of them, were of a personal nature and were of a

sort to which, in the ordinary course of medical practice, confidentiality would attach.

Other Testimony.

21. A Garda Kevin Daly also gave evidence and described receiving a request from the English police. He referred to certain items

which were the subject matter of the police property application and said that these were voluntarily given to the Gardaí by the

applicant, rather than seized. He also gave evidence of being given a mobile phone by the applicant.

22. Garda Quinn also said that he had received notification of the application under the Police Property Act “at the start of February”.

He told the first-named respondent that it was listed for the following day, 26th March, 2002. He said that the application “names the

majority but not all of the properties taken by us. Some of the property from the holdall bags. Some of the clothing he wore at the

time of arrest and his rings and mobile phone”.

23. It may be noted that although the guard was aware of the pending police property application since a date very early in February,

2002, the deponent from the Department of Justice swore that he did not become aware of this application until the 19th March,

2002.

Other features of the hearing before the first Respondent.

24. Certain other features of the hearing before the first respondent are of significance. Counsel on behalf of the third-named

respondent opened both the request and the relevant law. He also referred to the Police Property Act. The first-named respondent

made an order in respect of the mobile phone itself, even though that had not featured in the request. Although the respondents

have denied any knowledge of the order that was subsequently drawn up, the transcript reveals that the first-named respondent

said:-

“Alright. I’ll make an order for all of the items referred to in the police property application other than the photograph albums”.

25. He then went on to discuss the question of the rings and rejected a submission on behalf of the third-named respondent to the

effect that the rings constituted “clothing”.

26. After this, counsel on behalf of the third-named respondent said he wished to raise something that was concerning his solicitor.

He then said:-

“… I appreciate the concern. I think, Judge, you will. It is that in order to ensure the chain of evidence, and some of this

evidence may form part of the prosecution evidence in the United Kingdom – in order to ensure the integrity of the chain – that

the documentation on the items transferred are given in some sense directly to the English authorities…”.

27. The significance of this, obviously, is that it is a clear indication that the evidence taken and the items the subject of the order

would or might form part of the evidence against the applicant in a trial in the United Kingdom. In the course of the hearing of this

appeal, however, it was stated that counsel’s statement to that effect was a “mistake”. The nature of this mistake, how it came to

be made, when it was discovered, and what the true position was in relation to the items and information to which the hearing related

was not explained to this Court. Accepting, on the faith of senior counsel’s statement that it was indeed a mistake, the position

nevertheless remains that the view of the solicitor and counsel representing the third-named respondent at the hearing before the

first-named respondent was that the relevant material might form part of the prosecution evidence against the appellant in England

and, therefore, that it was necessary “to ensure the chain of evidence”. It was not, therefore, required solely for investigative

purposes.

28. Another feature worth noting is that the first-named respondent enquired whether there was a solicitor acting for the applicant in

the police property application. The guard said that there was not a solicitor acting in relation to that application, that it appeared to

be a personal application. He did however say that a named solicitor had acted for him “on the criminal aspects”. However, in the

affidavit of the applicant’s solicitor he said that his firm was instructed, in January 2002, to seek the return of the clothing which had

been taken from him.

Legal framework.

29. The hearing just described took place pursuant to s.51 of the Criminal Justice Act, 1994. This provides:-

Taking of evidence in State for use outside State.

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.

(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the

law of the country or territory or by arrangement with the appropriate authority therof 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.

(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance

of a notice under subsection (2) of this section.

(7) -

(8) -

(9) -

30. The second schedule referred to provides, in part:

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 that Court.

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

31. The schedule further provides, in part:

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

that made the request.

Knowledge of the applicant.

32. No attempt was made to notify the applicant of the hearing pursuant to s.51 and accordingly there was no question of his being

able to take legal advice in relation to it. He did however become aware that some proceeding was in being because he was informed

by his sister of the service of the summonses on her and on his brother-in-law. He spoke to his sister by phone and offered the

opinion that as far as he knew she and her husband did not have to answer any questions of the sort indicated. He also asked his

solicitor to secure representation for his sister and brother-in-law. They called to the applicant’s solicitor office on the morning of the

hearing. The solicitor considered that there appeared to be a potential conflict of interest in his representing them. The solicitor also

made enquiries and discovered that there was no application listed at 10.30am on the 25th March, 2002. In fact, the witness

summonses to the sister and her husband inaccurately required their attendance on “the 25th March, 2000” at 10.30am”. In any

event, these parties did not attend at the hearing.

33. The applicant said that when he heard of the service of summonses on his sister and brother-in-law he formed the view that they

were suspected of harbouring him while unlawfully at large.

Subsequent developments.

34. In the course of the hearing of the appeal, there was considerable discussion about the medical records. The point was made that

the request did not extend to the medical records and that the records in question, which were the totality of the records available

to Dr. Browne, clearly related to matters which could have no possible evidential significance, and were prima facie confidential. In

fact, the interest of the English authorities in the medical condition of the applicant was limited to the question of whether he had

any injury when seen by the prison doctor in Dublin, and presumably arose on the basis that they were keen to know whether he had

any injury consistent with the struggle which had taken place in Birmingham. A number of points were agitated before us as to the

status of the first-named respondent’s order in relation to the medical records and as to how such status might impact on the

question of whether the hearing under s.51 was or was not a judicial hearing. Counsel for the respondents asked to be allowed to

address this question after the luncheon adjournment. At that time he stated that the authorities would not seek to transmit the

medical records to the United Kingdom.

35. It further transpired that when the applicant’s police property application came on for hearing before the President of the District

Court on the 26th March, 2002, the Court was made aware of the events of the previous day. The President made an order, on the

application of counsel for the applicant that the items the subject of the application be retained in garda custody pending further

order of the District Court.

Potential use of the relevant material.

36. We have already seen that, at the hearing before the first-named respondent, counsel for the third-named respondent envisaged

at least the possibility that the material to which the application related might form part of the evidence against the applicant in a

trial in England. The attitude of counsel for the second and third-named respondent to this area of the case was a very nuanced and,

it may be, an internally contradictory one. He said with emphasis that the statement quoted above was a mistake: the uninformative

nature of his indication to this effect has already been noted. Counsel also objected, with at least equal vehemence, to any

submission based on the proposition that the material in question would or might form part of the prosecution evidence in the United

Kingdom, or that it was possible, as a matter of English law, that this might happen. English law, he said, was a matter of fact for the

purposes of a hearing before our courts and would require to be established in evidence by an expert.

37. In my view it is asking a great deal of the Court on the one hand to accept, without being provided with any details, that the

unambiguous statement of counsel for the first-named respondent was a mistake, and on the other to decline to consider at all even

whether it is possible that the relevant material might be used in evidence in the United Kingdom. It is only fair to point out that, if

mistake there were, it was not the mistake of the solicitor or counsel engaged on behalf of the authorities before the first-named

respondent. Counsel merely mentioned, on direct instructions, his solicitor’s concern that the order of the first-named respondent be

such as would preserve the chain of evidence for possible use in a prosecution in the United Kingdom. It is impossible to see why the

solicitor would have raised that concern, other than on the basis that his then instructions were that regard should be had to

preserving the chain of evidence for a possible trial in the United Kingdom. Of course those instructions may have been given in error:

those instructing him might have misapprehended the purpose of one or other of the letters of request, or there might have been a

breakdown in communication with the English Crown Prosecutions Service. But nothing of the sort has been established in evidence,

or made the subject of submissions.

38. Equally, this Court is well used to the consideration of English authorities and English statutes. Indeed, the principal authority

relied upon by the respondent on the hearing of this appeal was R. v. Secretary of State for the Home Department, ex parte

Fininvest SpA [1997] 1 WLR 743, a decision of the English Court of Appeal in relation to “a wide ranging series of challenges directed

at the implementation by the United Kingdom authorities of an Italian letter of request”.

39. In these circumstances, I do not consider that it would be either fair or realistic to fail to address the alleged potential for the

material gathered as a result of the s.51 hearing, or the material sought to be gathered by oral examination of the applicant’s sister

and brother-in-law, to be used in evidence in the United Kingdom. Certainly, it would not be possible for this Court to decide

authoritatively whether or not such material could be used. But it is perfectly reasonable and indeed essential in the interest of

justice to address whether there was an intention to produce the relevant material in usable form, thus allowing for its potential use. I

do not believe that the second and third-named respondents can, so to speak, have it both ways by dismissing the statement made

on their behalf before the first-named respondent as a mistake of unexplained causation, while refraining from making any statement

as to what the true position is, and submitting that the applicant’s failure to produce expert English evidence debars him from raising

the question. It should be remembered that the applicant was not put on notice of the proceedings before the first-named

respondent, was not (contrary to the terms of the first letter of request) permitted to take legal advice on the question of the

request from the United Kingdom Authorities and indeed has never been told precisely what was afoot between those authorities and

the second and third-named respondents here, in so far as it concerned him.

Legal aspects of the Convention regime.

40. It will first be noted that the obligation which this State has assumed under the Convention is an obligation to execute any letters

rogatory “in the manner provided for by [Irish] law” (Article 3). The relevant statute law is the Act of 1994. It will be seen, in s.51,

that a hearing under that Section is to be conducted by a judge of the District Court nominated by the Minister and who has the duty

“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”.

41. It does not appear to me that a judge of the District Court discharging this duty, is sitting as such judge. No doubt he is bound to

act judicially but his status as a judge seems to me to be merely a condition of eligibility for nomination. Counsel for the authorities

submitted that the first-named respondent was sitting not as a judge but merely as a persona designata. I agree with this.

42. Secondly it appears to me that the persona designata is limited to the statutory function of receiving “such of the evidence to

which the request relates as may appear… to be appropriate for the purpose of giving effect to the request”.

43. This in turn has the consequence that the evidential material received cannot extend to material which is outside the scope of

the request. This is of relevance here because, for example, both the medical records and the mobile phone appear to be entirely

outside any possible reading of the terms of the request. The submission on behalf of the third-named respondent, fortunately

irrelevant in the event, that rings constituted “clothing” needs no comment here.

44. Looking further at the Act of 1994 one sees that s.52 makes provision for the obtaining of evidence outside the State for use in

the State. Subsection (6) provides:-

“Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in

subsection (3)(b) of this Section be used for any purpose other than specified in the letter: and when any document or other

articles obtained pursuant to a letter of request is no longer required for that purpose… it shall be returned to such authority…”.

45. Subsection (7) provides:-

“A statement of evidence of a witness taken in compliance with the letter of request, and certified by or on behalf of the Court

Tribunal or authority by which it was taken to be a true and accurate statement of the evidence so taken shall be admissible in

the proceedings concerned as evidence of any facts stated therein of which evidence would be admissible in those

proceedings”.

46. Subsection (10) provides:-

“In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the

exercise of the Court’s discretion to exclude evidence otherwise admissible, the Court shall have regard – paragraph (a) to

whether it was possible to challenge the statement by questioning the person who made it, and paragraph (b) if the statement

was taken in the country or territory in question, to whether the law of that country or territory allowed the parties to

proceedings to be legally represented when the evidence was being taken”.

Position in the United Kingdom.

47. The artificiality of certain of the submissions made on behalf of the authorities is in my view demonstrated by a consideration of

the Criminal Justice (International Co-operation) Act, 1990, the relevant United Kingdom legislation at the time of the requests.

Section 3(7) is in terms absolutely identical to s.52(6) of the Irish Statute, apart from the number of the subsection quoted. Section

3(8) is in terms substantially identical to s.52(10) of the Irish Statute. The variations are the United Kingdom Courts’ discretion to

exclude evidence is described by reference to a statutory power – s.25 of the Criminal Justice Act, 1988. This could not be done in

this jurisdiction because there is no such statute. In subparagraph (b) of the English subsection the Court is required to consider

“whether the local law allowed the parties to proceedings to be legally represented when the evidence was taken” as opposed to the

Irish subparagraph which requires the Court to have regard to “whether the law of that country or territory allowed the parties to the

proceedings to be legally represented when the evidence was being taken”.

48. Having regard to this enormous similarity in the substance of the statutory provision and its phraseology, to the common law

heritage shared by Great Britain and Ireland; to our mutual adherence to the European Convention on Human Rights, to the fact that

the Irish draftsman plainly had regard to the English Act and to the fact that we are daily invited to consider English judgments, as

we were by the respondents in the present case, it is in my view reasonable to conclude, unless the possibility is specifically

negatived in a letter of request, that evidence gathered on foot of a request from the United Kingdom may be used in evidence in

criminal proceedings in that jurisdiction. The evidence which may be open to being used in this way includes the recorded version of

oral testimony, documents, and items of real evidence.

49. The artificiality of the Authorities’ position is further underlined by the fact that in Fininvest, cited above, upon which their

submissions were in part based, the English Statute of 1990 is thoroughly discussed and extracts from it set out. It would clearly be

an exercise in futility to bring this foreign authority to our attention if it was not felt that the Court, without the assistance of expert

evidence (for neither party adduced any) could sufficiently construe the U.K. statute to make sense of the findings on which these

respondents seek to rely. The Authorities are perfectly correct in that expectation. For the same reasons, and to the same extent, I

feel quite able to look to the English statute on admissibility of evidence gathered under a letter of request: not authoritatively to

construe it, but to form a view of what may occur under it of relevance to the Irish proceedings impugned in this action.

50. The artificiality of these respondents’ stance on the inability of the Court to consider the English regime is further illustrated by

the contents of the supplemental affidavit of Mr. James Clerkin, an Assistant Principal Officer of the Department of Justice sworn in

this matter on the 29th April, 2002. There is no suggestion that Mr. Clerkin is an English qualified lawyer or an expert of any kind.

Nevertheless he purports at paragraphs 11, 12, to state that the Act of 1994 “incorporates into Irish law the provisions of the

European Convention on mutual assistance in criminal matters… and to other International Conventions…”. He then says that Ireland

is bound by the International Conventions to execute requests for assistance to the fullest possible extent. He goes on to express the

view “… That it (sic) both Irish and United Kingdom jurisdictions included in their legislation incorporating international mutual

assistance provisions that Articles gathered in such request can only be used for the purpose specified…”.

51. Apart from the imbalance, in light of the opinion on matters of law proffered on a layman’s affidavit, of contending that the Court

and the applicant are inhibited from considering foreign law in the absence of expert evidence, but that the respondents may offer an

opinion on it, it appears from these passages of Mr. Clerkin’s affidavit that it is the respondents case that both the Irish and the

United Kingdom statutes incorporate into law for their respective territories the International Conventions referred to. This view of the

Irish and United Kingdom legislation, coupled with the marked similarity of phraseology in the relevant sections, in my view emphasise

just how unreal it would be to pay no attention to the United Kingdom statute. We must, of course, avoid anything which purports to

be an authoritative construction of it.

Significance of the request and Section 51 proceedings.

52. It appears to me that the fact that so much and such intense argument was directed to a submission that the Court should pay

no attention to the possible use in the United Kingdom of the material to which the s.51 application related is in itself significant.

Having surveyed that legislation, and in particular the relevant subsections corresponding to the Irish s.52, it is possible to make

certain further observations. If it is legitimate to proceed with an application under s.51 without making a person in the position of the

applicant aware of that fact, then obviously such a person cannot “challenge the statement by questioning the person who made it”

to quote s.3(8)(a) of the United Kingdom Act and s.52(10)(a) of our Act, which are in identical terms.

53. Equally, it would seem to follow that the “local law” did not allow the applicant to be legally represented when the evidence was

being taken since, as he was not put on notice of the application, he naturally could not obtain legal representation at it, or take

advice on it.

54. It will be further noted that an English court, like an Irish court, is obliged merely to have regard to these matters: in neither

country does the statute require the exclusion of evidence in the circumstances noted. Of course, it may be of the greatest

relevance in a particular case that both the United Kingdom and Ireland are signatories to the European Convention on Human Rights

which provides at Article 6(3)(d):-

“(3) Everyone charged with a criminal offence has following minimum rights…

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against him.”

The evidence proposed to be taken.

55. Judging from the witness summonses, and leaving out of account for the moment the items of real evidence, it appears that it

was desired to examine the doctor, a man from a mobile telephone company, and the sister and brother-in-law of the accused, as to

his movements and the other matters indicated.

56. It is most important to note that no suggestion was made in the High Court or in this Court that it would have been impossible, or

counter productive, to put the applicant on notice of the fact that it was proposed to examine these witnesses about the topic

mentioned on the witness summonses. He was in custody. The witnesses themselves were given about one week’s notice of the

matters on which they were intended to be examined: it follows that there was no extreme urgency which made notification of the

applicant impossible. In the case of each witness there existed the possibility at least that his testimony might be sought to be

admitted in evidence in the United Kingdom: no court in this country can form a proper view on how likely or otherwise it is that the

testimony would in fact be admitted.

57. Having looked at the English statutes it appears that the “desire” of the English authorities that the applicant “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 in so far as they are applicable” may be in part attributable to the matters to which the English court must have

regard where a question of admissibility arises. It would, of course, be unfair to conclude that this desire may not also be attributable

to a simple wish, very creditable in a public authority, to vindicate the applicant’s human rights. But the relevance of the passage for

present purposes is that if the applicant were to be permitted to take legal advice about both Irish and English criminal law, he would

of course have to be told what was afoot. The English authorities clearly had no objection to this, and in fact wished it to be done.

Their request was ignored.

58. In my view the submission of the authorities on this aspect, too, is a highly artificial one. It was submitted that the desire to have

the applicant permitted to take legal advice expressed by the English authorities must be viewed as applying only to the first request

(which did not envisage an application under s.51) and not the second one, which did. This is plainly a fatuous distinction. On the

first request the applicant was being asked only to make voluntary disclosures or to permit, voluntarily, the taking of evidential

material. Between that date and the U.K. authority’s letter of the 21st February, 2002, it appears that the Irish authorities (with or

without requests) decided to proceed by way of s.51. Under these provisions efforts were to be made to establish his movements,

any conversations he may have had with certain persons, his telephone records, and to get his medical records from Dr. Browne.

59. In my view, in principle, the taking of such evidence in the circumstances envisaged in the Statute is in my opinion sufficient to

constitute the applicant as “… a party, because his conduct has become the subject matter of the Committee’s inquiry or examination

by reason of the charges which have been levelled against him”, to quote the phrase of Ó Dálaigh C.J. in Re Haughey [1971] IR 217 at

263. In my view there is a sufficient analogy with the circumstances of that case to allow the phrase quoted, with the necessary

incidental amendments, to apply. One need only read the produced portion of the two letters of request to see the grave suspicion to

which the applicant was subject. His conduct, inter alia, had indeed become the subject of the first-named Respondents’ inquiry or

examination by reason of those suspicions.

60. The foregoing, in my view, represents the position in principle. I am far from holding that, if circumstances of urgency, reasonably

apprehended destruction of evidence or intimidation of witnesses required it, evidence might not be taken without notification. After

all, evidential material is frequently taken without notification in the execution of a warrant. But that is done in the confidence that,

in the event of the seized material becoming evidentially significant, its admissibility will be decided by our courts on known principles

which respect the constitutional rights of the accused. Equally, the law provides examples of the seizure of materials for evidential

purposes on notice to the person holding them: see Haughey v. Moriarity [1999] 3 IR 1. In that case, orders in the nature of

discovery orders had been issued against a number of individuals’ bankers without notice to them. Hamilton C.J. said:-

“Fair procedures require that before making such orders, particularly orders in the nature of the orders made in this case, the

person or persons likely to be affected thereby should be given notice by the tribunal of its intention to make such order, and

should have been afforded the opportunity prior to the making of such order, of making representations with regard thereto.

Such representations could conceivably involve the submission to the tribunal that the said orders were not necessary for the

purpose of the functions of the tribunal, that they were too wide and extensive having regard to the terms of reference of the

tribunal and any other relevant matters.

The Court is satisfied that the trial judge was correct in his findings that the order sought to be impugned herein made by the

tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by

the tribunal in the making of such orders.

There may be exceptional circumstances, such as the legitimate fear of destruction if prior notice was given, where the

requirements of fair procedures in this regard may be dispensed with. No such circumstances exist in this case”.

61. I believe that this passage, in principle, applies to the present case as well. It is manifest and indeed now conceded that valid

submissions could have been made, apart from anything else, relating to the scope of the orders. There is no possible mandate in law

for the transmission of the entire medical records, nor were they requested by the English authorities. Equally there is no mandate in

law for the transmission of the mobile phone, which equally was not requested by the English authorities. These items were ordered to

be delivered in what can only be described as a burst of excessive enthusiasm. In the case of the medical records, this action in my

view constituted an unwarrantable breach of the applicant’s entitlement to privacy in his dealings with the doctor who treated him,

with no corresponding benefit either in the investigation of crime or otherwise. It did not even have the colour of a request by the

authorities in another country.

Nature of proceedings.

62. In making the comment in the preceding paragraph I intend no criticism of Dr. Browne. This gentleman, like the other witnesses,

was summoned to a hearing, in a court room described as such, by a judge of the District Court, and before “a judge of the District

Court”. He was then asked for the medical records by a barrister acting as such and instructed by the Chief State Solicitor before a

person who was a judge of the District Court who did not intervene in the process. He was therefore entitled, in my view, to assume

that the records were required for some lawful purpose and that his parting with them was judicially sanctioned.

63. In my view the nature of the proceedings envisaged by s.51 render it necessary that any person, and especially a person invited

to breach his obligations of confidentiality to another, be informed that, appearances to the contrary, he is not before a court and

that the person presiding is not doing so as a judge, or with the authority of a judge. If this were explained to a medical practitioner

asked, in the absence of his patient’s consent, to disclose the latter’s records the probable result is that he would wish to take the

advice of his professional body which would almost certainly lead to his taking legal advice. In the present case, even a superficial

legal scrutiny would have led to his being alerted to the fact that the letter of request did not extend to a request for a totality of

the medical records. Apart from any other point that might be urged against disclosure, there was in my view no power whatever in

the persona designata to mandate the handing over of these records, outside the terms of the letter of request.

Criticism of proceedings.

64. The applicant strongly contends that he was entitled to notice of proceedings in which (according to the facts as they were at

the time of the issue of the witness summonses) a doctor who had treated him, a man who could give evidence about the use of a

mobile phone linked to him, and his brother and sister-in-law who, or so the authorities hoped, could give evidence about his

movements were to be examined in circumstances where the contents of their examination might become evidence against him

abroad. He also contends that he was entitled to such notice before the first-named respondent sent to the third-named respondent

for the purpose of transmission outside the country items of real evidence which were his property. He says that the failure to give

him such notice was in effect a denial of his right to take legal advice or to be legally represented. He relies on the fact that the

English authorities, in making their request, asked that he be permitted to take advice. Certainly, this is irrefutable evidence that they

saw no practical reason why he should not be put on notice. The applicant also claims that the arranging of the s.51 hearing for the

day before the police property application, at which he was the moving party and would certainly have been present or represented,

was an attempt to interfere with his access to the Courts in relation to the real property in question and to circumvent the power of

the District Court in favour of that a district judge sitting as persona designata (according to the authorities) with a very

circumscribed discretion.

Response to criticisms.

65. The respondents’ say, first of all, that the proceedings under s.51 before the first-named respondent were not conducted by him

sitting as a judge. I have already indicated that I agree with this. They go on to say such proceedings are in aid of a criminal

investigation in another country, and there is no question of the applicant requiring to be put on notice of them, much less to be

permitted to take legal advice. Indeed, it is said it would be positively counterproductive if this were the case:-

“It is not the law that a murder investigation, either here or abroad, must run the risk of being compromised by a claim of

breach of privacy. If a suspect must be involved in the information gathering aspect of a murder investigation, as claimed by

the appellant in these proceedings, the bringing to justice of such suspect must be rendered considerably less likely”.

66. As noted above, it was vehemently and repeatedly insisted upon by the respondents that it is quite impossible for the Court to

consider any suggestion that evidence gathered pursuant to s.51 may be used as part of the evidence against the applicant in the

United Kingdom. The indication to the contrary in the course of the hearing before the first-named respondent is dismissed as a

mistake and the absence of expert evidence on the prospect of using the material in evidence in a prosecution in the United Kingdom

is said to be fatal.

Preliminary conclusions.

67. I would first of all reject two of the submissions made, one on each side.

68. I am not satisfied, on the evidence, that there is any support for the view that the proceedings under s.51 were meant to

forestall or frustrate the applicant’s police property application. I fully accept that it is coincidental in a high degree that a return

date for the former was sought the day before the date fixed, about six or seven weeks previously, for hearing of the latter

application. It is also remarkable that the relevant member of An Garda Síochána was aware of the date fixed for the police property

application for about six weeks whereas the gentleman in charge of proceedings in the Department of Justice remained in ignorance of

this for most of that time. But the affidavits filed on behalf of the respondents disclaim any such intention and give an explanation

which, though relying on a high degree of coincidence, is by no means impossible. In those circumstances it seems to me that if the

applicant wished to take this aspect of the matter any further he should have done so by way of cross-examination of the

deponents: it is not a matter that can be resolved by the exchange of affidavits. This being so, and in view of the onus of proof

resting on the applicant, I would not grant him relief on this basis.

69. I now turn to the question of whether the intended or possible use in evidence of the oral written or real evidence solicited under

s.51 is a matter which may be considered by the Court. I have already said that I regard the respondents’ contentions in this matter

as highly artificial. The fact is that an unambiguous statement in relation to the prospect of their being used in evidence was made by

counsel on behalf of the third-named respondent. This was not done on his own initiative but on instructions. What counsel said is

recorded in a transcript which the respondents have produced. It is not possible, in my view, to dismiss this indication as “a mistake”

in the totally uninformative manner chronicled above. The respondents seek to go further: having got counsel’s indication out of the

way, they hope, in the manner described, they proceed on the basis that there is no evidence as to what the use or potential use of

the relevant material may be, because, they say, the applicant has failed to produce any.

70. I would firmly reject that submission. The indication counsel was instructed to give was in fact given and that fact cannot be

airbrushed from the records of this case. Accordingly it is unnecessary to demonstrate from the English Statutes that the possibility

of evidential use of the material exists. I would, however, strongly reject the view that we are not entitled, in the circumstances of

this case, to have regard to the English statute. I would refer specifically, once again, to the fact that the respondents have relied

before us on a judgment of the English Court of Appeal which sets out other parts of the Statute.

Convention obligations.

71. I have already set out towards the beginning of this judgment the fundamental provision of the Convention to which Ireland has

subscribed. I wish here to recall only the first phrase:-

“The requested party shall execute in the manner provided for by its law any letters rogarty relating to a criminal matter…”.

72. The reference to Irish law naturally includes the Act of 1994, much cited above, but also the Constitution and the substantial

jurisprudence arising from it. No doubt it may be regarded also, since the Human Rights Act, 2002 and to the extent there provided

for, as including the European Convention on Human Rights. I do not propose to address this in any detail, however, since I believe

that the rights which it protects, in so far as they bear on this case, are at least as amply protected in the Constitution.

Certain relevant facts.

73. Before considering the manner in which, to comply with Irish law, this particular request must be met, I wish to recapitulate

certain relevant facts. A significant part of the respondents’ case, exemplified in the citation from their written submissions above, is

to posit an extreme position and suggest that the procedures necessary in those circumstances are applicable in the present case.

This method of argument from a hypothetical extreme case to a perfectly ordinary one is gravely unsound as I said in my judgment in

Sinnott v. Minister for Education [2001] 2 IR 545 at 709:-

“In my view, it is neither logically sound nor desirable to ground an argument by hypothesising an altogether extreme situation

which admittedly has no applicability to the facts of the instant case, and to contend that the powers necessarily available to

deal with so acute an emergency are therefore equally available to deal with an altogether different situation”.

74. I therefore repeat that, in the present case, the authorities of the requesting State actually expressed the desire that the

applicant:-

“… 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 so far as they are applicable”.

75. It is most important to stress that all of the difficulties which have beset the respondents in this case have arisen because, for

reasons never explained, they declined to comply with this request of the English authorities.

76. Manifestly, it would be impossible to give the applicant any meaningful opportunity of taking legal advice, whether in terms of

English or Irish law, without telling him what was going on.

77. The fact that the requesting authorities made this additional request in relation to legal advice shows quite clearly that they saw

no reason why the applicant should not be permitted to take legal advice, and therefore put on notice of what was happening. On the

contrary, they saw good reason to suggest that he should be permitted to take such advice. As mentioned above, this may be

because they feared for the admissibility of the evidence gathered if he did not have this opportunity, or because they simply wished

to accord him his civil and human rights, or some combination of these reasons.

78. I am far from holding that there would never be circumstances in which it might be necessary to proceed to take certain

evidence, oral documentary or real, without notice to a person in the applicant’s position because of a risk of destruction of evidence

or other drastic consequences. But that is plainly not the case in this instance. It is a logical fallacy to think, because there may be

such a case, that the procedure necessary to deal with it is therefore applicable to another case where the circumstances are quite

different.

79. This is not new law: Haughey v. Moriarty, cited above, also related to a body, in that case a Tribunal, which was not engaged in

the administration of justice. But it was obliged to follow fair procedures, which plainly the first-named respondent was also. Although

it was, by statute, furnished with all the powers of the High Court in relation to the gathering of evidence nonetheless:-

“Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this case, the

person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order, and

should have been afforded the opportunity prior to making of such order or making representations with regard thereto”.

80. The rest of the relevant portion of the judgment of Hamilton C.J., coupled with the provision he made for dealing with exceptional

circumstances such as a fear of destruction of evidence, has already been cited above.

81. In my view the facts of the present case are such that the requirements of fair procedures outlined in the passage just quoted

apply a fortiori. The material being gathered for the purpose of the Moriarty Tribunal would, after all, be remaining in this country. Its

introduction into evidence would be at the discretion of the Tribunal, which was subject to control by judicial review by the High

Court and by this Court. In the present instance the evidence, including the transcripts of oral evidence may be sent out of the

country and thus out of the control of those Courts. It cannot be said that that situation is one in which the applicant is less

deserving of the protection of fair procedures than were those in Haughey.

82. Equally, I do not think that the fact that in the middle of the appeal hearing the authorities for the first time prescinded from their

intention sending the medical records out of the jurisdiction necessarily affects the result of this case. The medical records were

wholly outside the scope of the request and should not be in the possession of anyone other than the applicant or his doctor. That

the authorities, more than two years after the event and under some pressure, decided for the first time not to transmit them out of

the jurisdiction cannot have any bearing on the question of what fair procedure required at the time these private records were first

handed by the doctor to counsel for the third-named respondent, or at the earlier time when he was ordered to produce them.

83. If one were to be influenced by the undertaking of the Minister in the course of the hearing, it could only be on the basis that the

argument in relation to the medical reports was rendered moot in the sense that there was no longer a real issue between the parties

in relation to the medical records. As it happens, this Court has quite recently examined the concept of mootness in Goold v. District

Judge Collins (Supreme Court unreported 12th July, 2004) and it is unnecessary to repeat that discussion here. It was noted, in

particular, that the notion of mootness has been much explored in American and Canadian cases some of which are examined in Goold.

84. There is an elaborate examination of the American doctrine of mootness in Honig v. Doe 484 US 305 [1988]. In the concurring

judgment of Rehnquist C.J., he noted exceptions to the mootness doctrine, and in particular instances in which the United States

Supreme Court had refused to dismiss as moot cases in which the defendant voluntarily ceases, at some advanced stage of the

litigation, whatever activity prompted the plaintiff to seek relief. This case is a perfect example of such a situation. The undertaking

offered here was offered in circumstances where it was clear that there were grave difficulties in the authorities’ position. No such

undertaking had been offered in the High Court.

85. In the leading case of Borowski v. Canada [1989] 1 SCR 342, the rationale of the modern mootness rule was elaborately explored

by the Supreme Court of Canada. The second rationale cited is:-

“… based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if

it is worthwhile to allocate scarce judicial resources to resolve the moot issue.”

86. This sits well with the reasoning of Rehnquist C.J. in Honig. The Courts scarce resources, he said, “are squandered in every case

in which it becomes apparent after the decisional process is under way that we may not reach the question presented”.

87. Dealing with the cognate area of reluctance to enter into a constitutional question in litigation which can be resolved in another

way, both O’Higgins C.J. in M v. An Bord Uchtála [1977] 287 and Finlay C.J. in Murphy v. Roche [1987] IR specifically reserved the

power of the Court, in the interest of justice, to embark on a constitutional issue even if it were not necessary to do so for the

resolution of the case, when the interest of justice require it.

88. There is also the consideration that it would not be conducive to the interest of justice if a party (whether a State party or

otherwise) could persist in a particular stance until a very late stage of litigation and then, having got a sense of the way the case

was going, avoid a decision by giving an undertaking. Of course there are cases, notably in the area of private law, where a dispute

between private parties would be fully resolved by an undertaking, and the Court should encourage this. But in the area of public law

I do not think that the Court is bound to desist from adjudication simply because a very late undertaking has been given. In all the

circumstances, including the relative novelty of applications such as the present, and bearing in mind what is said below, I consider

that it is unnecessary for the Court to pronounce definitively on the issue of the medical records.

89. I wish however to express my grave disquiet at the fact that private medical records were handed to the State authorities for

possible transmission out of the jurisdiction without notice to the patient and without the protection of a judicial order. I am not

holding that there are no circumstances in which such a thing may occur, but none were suggested in argument and none occur to

me. I wish to emphasise again that I am attaching no blame to the doctor in question who had every reason to believe that his

handing over of the records was required on the authority of a judge acting as such. Having received what, on the face of it, was a

duly issued summons ordering him to appear at a particular courthouse “before a judge of the District Court”, it would have been

extraordinary if he were of any other view.

90. I accept however that the question of mootness was not elaborately argued on this Appeal, since the State’s concession was so

late. Equally, in light of that concession, my general remarks as to the status of the reports may be regarded as obiter. But I would

not lightly interfere with patient/doctor confidentiality, to which I consider that the procedural protections afforded to banking

confidentiality in Haughey v. Moriarty, cited above, apply a fortiori.

Conclusion.

91. I do not feel confident, as the learned Chief Justice and Denham J. do, that the request made by the United Kingdom authorities,

and the action taken by the Irish authorities on foot of it, was not intended to and has not produced material in a form which might

be put before a court in the United Kingdom with the request for its admission as evidence. The factors which make me apprehensive

in this regard are, first, the unambiguous statement of counsel for the authorities to the first-named respondent, secondly, the taking

of evidence on oath and the creation of a stenographic record thereof and thirdly, the fact that there are apparently extensive

excisions from the two letters of request which have been placed before the Court. There may be other communications which have

not been placed before us at all. The first of these matters speak for itself. It is absolutely plain that counsel was affirmatively

instructed to “ensure the chain of evidence” because “some of this evidence may form part of the prosecution evidence in the United

Kingdom…”. This has been stated, but in a bare and unconvincing fashion, to have been a mistake, and I will not repeat the

observations which make me consider this a very unsatisfactory contention. It is particularly noteworthy that the State authorities

have not advanced any view as to whether or not the relevant material is open to use in evidence. On the contrary, they have

preserved a studied silence on this topic and made strong submissions to the effect that the Court should not consider it at all.

92. There may of course be good reason for the excisions from the correspondence but their existence make its difficult for me to

arrive at any firm conclusion as to what the authorities had in mind. It is difficult to see any reason for taking evidence on oath other

than the prospect of its use in a court: the same applies to the making of a certified transcript.

93. Despite these matters, which cause me considerable concern, I believe that the specific circumstances of this case make it

proper to dispose of it in the manner proposed by the learned Chief Justice. Firstly, no appeal has been taken against the order of Ó

Caoimh J. which quashed the order purportedly made by the first-named respondent on the 25th March, 2002. This in turn appears to

render moot the application for a declaration that s.51 of the Act of 1994 is repugnant to the Constitution. The undertaking by the

Minister not to transfer to the United Kingdom the applicant’s medical records seems to render moot the very serious issues arising

about these records and the evidence of Dr. Browne relating to them. The mobile phone is admitted to be outside the scope of the

request. The applicant’s sister and brother-in-law did not attend the hearing and therefore did not give evidence. They appear have

been entitled to take this course, apart from anything else, by reason of the fact that the summons served on them required their

attendance on a date about two years before the date of issue of the summons. The phone records appear to be of purely

investigative utility and not to be capable of admission in evidence without further proof, in the absence of the Order which has been

quashed.

94. I agree with the view of Denham J. that the express request of the English Authorities that the applicant be permitted to take

legal advice about their requirements in relation to him does not of course in itself establish that he is entitled to notice of the s.51

proceedings as a matter of Irish law. But it does conclusively establish that the English Authorities saw no practical or principled

objection to his being given notice of what was going on. The factual history of this case features many oddities of which by far the

most striking is that the Irish Authorities have never explained why they did not comply with this request. Had they done so this

litigation might have been unnecessary, and would certainly have been resolved much sooner.

95. Despite this, in all the circumstances outlined above, I concur with the order proposed by the learned Chief Justice. I hope that

the discussion to which this case has given rise will ensure the smoother, more straightforward, and more thought out use of the

relevant statutory provisions when next they become relevant.