Supreme Court dismisses appeal regarding property transfer without notice under Criminal Justice Act 1994.

THE SUPREME COURT

JUDICIAL REVIEW

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

282/03

BETWEEN/

JASON BRADY

Appellant/Applicant

and

DISTRICT JUDGE GERARD HAUGHTON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

Respondents/Respondents

AND

THE ATTORNEY GENERAL

Notice Party

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

1. This is an appeal from the refusal of the High Court (Ó Caoimh J.) to give relief by way of judicial review the effect of which would

be to stop the Minister for Justice, Equality and Law Reform from transferring certain clothing and a mobile telephone the alleged

property of the appellant and also medical records relating to the appellant maintained by the prison medical officers with a view to

assisting in the investigation of a murder committed in England. The proposed transfer would be carried out pursuant to the provisions

of sections 51 to 55 of the Criminal Justice Act, 1994 and the Second Schedule to that Act which provisions were in turn enacted

pursuant to Ireland’s obligations under the European Convention on Mutual Assistance in Criminal Matters.

2. I will be setting out the relevant provisions but they can be summarised as follows. A request may be made by say the prosecution

authorities of England and Wales for specified assistance in the form of either witnesses’ evidence or particular items of property and

the Minister is then entitled to nominate a District Court judge to receive the requested evidence. After the determination by the

District Court judge of what is appropriate to be transferred it is for the Minister to decide to what extent he will carry out such

transfer. In this case the main complaint of the appellant is that the procedure before the District Court judge took place without

notice to him. He claims that the necessity for notice arises automatically from the fact that the procedure before the District Court

judge constitutes the administration of justice. But even if the appellant was wrong in that fundamental proposition, he claims that he

was at any rate entitled to notice both on the basis that his property rights were at stake and that there were serious issues of

privacy in relation to the medical files and, indeed, ethical questions involving the doctor’s right to produce them.

3. The appellant makes two other complaints also. He says that the hearing before the District Court judge was wrongly permitted to

take place the day before an application by him under the Police Property Act, 1897 to recover his property in the possession of the

gardaí was listed for hearing and he argues that this was an unconstitutional interference with his own litigation in the courts. He

then further complains that the entire procedure was wrong in that the District Court judge receiving the evidence sat as though he

was sitting in an ordinary District Court and that documentation emanating from the authorities were forms appropriate to the District

Court. Furthermore, the District Court judge, as indeed he was entitled to do under the Act, directed evidence to be taken on oath

but this factor in the view of the appellant strengthened his submission that for all practical purposes there was a full blown court

hearing and that in particular in that context the relevant medical officer from the prison would have felt inhibited from raising any

ethical objection to his production of the medical records.

4. I will deal first with the medical files. I do so because counsel for the Minister has given to this court, at the hearing of the appeal,

an undertaking on behalf of the Minister that he will not transfer the medical records to the English authorities. That being so, I would

prefer to leave to another case where it was clearly relevant, the question of what, if any, protection a person such as the appellant

should have in relation to a proposed transfer to another jurisdiction of his medical records. Of course, in this particular case they

were not actually asked for, a fact which the Minister acknowledges and that is probably the main reason why he is giving the

undertaking. There is no legal privilege between doctor and patient and as to what the rights of gardaí or prosecuting authorities

would have in relation to obtaining medical records or viewing medical records as part of an ordinary Irish investigation are clearly

questions which would be relevant in considering questions of whether, in a given instance, they can be transferred to another

jurisdiction without the permission of the person involved. There are other problems also. Even in the case of a relationship which

does not give rise to a legal privilege in the strict sense, a court may have regard to the confidentiality rights of a party in considering

whether it is absolutely necessary that such evidence be given. These are all difficult questions and in view of the Minister’s

undertaking, I think that it would be unwise to embark on an attempted resolution of them. I propose, therefore, to treat of this

appeal as though the question of the medical records did not arise.

5. I propose now to reverse the normal sequence and to set out the law before coming to the facts. In order to understand the

relevant provisions of the Criminal Justice Act, 1994 it is helpful to consider first the European Convention on Mutual Assistance in

Criminal Matters. Ireland, as is the UK, is a signatory to that Convention. Article 1 paragraph 1 reads as follows:

“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.”

6. Article 3 paragraph 1 provides as follows:

“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 articles

to be produced in evidence, records or documents.”

7. Article 6 paragraph 2 provides:

“Any property, as well as original records or documents, handed over in execution of letters rogatory shall be returned by the

requesting Party to the requested Party as soon as possible unless the latter party waives the return thereof.”

8. There are many other provisions in the Convention as to how the scheme is implemented but the above citations sufficiently

indicate the nature of what is involved. As I have already mentioned, the Convention has been implemented in Ireland by certain

provisions of the Criminal Justice Act, 1994. The relevant parts of s. 51 of that Act read as follows:

“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….(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 thereof 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.”

9. Paragraphs 1 and 2 of the Second Schedule read as follows:

“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.”

10. There are various other provisions in the Schedule for the protection of witnesses which I do not need to set out. At this point, I

would merely pause to observe that the provisions of s. 51 which I have set out are taken almost word for word from s. 4 of the

United Kingdom Criminal Justice (International Cooperation) Act, 1990. I say “almost” because apart from formal adaptations such as

“the Minister” instead of “the Secretary of State” etc. there is one significant difference. Under s. 4 of the English Act, the Secretary

of State is expected to nominate “a court” whereas under s. 51 of the Irish Act of 1994 the Minister is expected to nominate “a judge

of the District Court”. It is interesting that the draftsman of the Irish Act thought fit to provide for the nomination of a judge as a

persona designata rather than a particular court. This can only be explained by the draftsman taking the view that what was involved

here was not the administration of justice. As to whether he was right or wrong in that view is, of course, an issue which this court

has now to consider. As has been said before, not everything that a court does is necessarily administration of justice but if an Act

gives a court a task the question of whether that task constitutes administration of justice is certainly going to be litigated.

11. Under this statutory scheme the task of receiving the “evidence” is given to a judge of the District Court nominated by the

Minister for Justice, Equality and Law Reform. The scheme of the Act makes it clear that it is nevertheless an evidence gathering

exercise. It is quite clear from the judgment of O’Keefe J. in the Supreme Court with which Ó Dálaigh C.J. and Walsh J. agreed in

Jennings v. Quinn [1968] I.R. 305 that in the case of a domestic crime for instance, there is a public interest in the gardaí after they

have effected a lawful arrest being entitled to retain possession or custody of property whether it be for the purpose of that

particular criminal charge or in support of some other criminal charge and furthermore that there is a public interest in the sending out

of the jurisdiction the property in the hands of the police for the purposes of a criminal prosecution in such jurisdiction. That case was

dealing with a narrower situation than this case and it long predated the Convention on the 1994 Act. But in considering what are

constitutional and fair procedures in relation to the implementation of the 1994 Act, the Supreme Court’s views in the Jennings case

as to what is in the public interest are not without relevance.

12. For the purposes of a domestic crime, evidence gathering in this jurisdiction does not involve a judge. That is not the case

however in most civil law jurisdictions where there is an examining magistrate independent of the police authority. That may be one

reason why the procedure under the 1994 Act is, as pointed out by McGuinness J. in Salinas de Gortari v. Smithwick (No. 2) [2000] 2

I.R. 553“sui generis”. In this connection, McGuinness J. said the following at p. 563:

“It is not, I think, valid to compare it either with an actual trial or with police investigative procedure prior to charge

under the Criminal Justice Act, 1984, or indeed with the taking of depositions in the District Court prior to sending an

accused person forward for trial on indictment. The s. 51 procedure is a procedure governed by statute and must be

considered within the bounds of that statute.”

13. I am in complete agreement with that statement. Clearly, in the interests of protecting legal and constitutional rights, the Irish

state would have to adopt different procedures for providing property and evidence to another jurisdiction over which it would have

no control. Ensuring that the evidence gathering is done before a designated judge provides a clear certified record as to what the

information provided was and as to what was considered appropriate to be transferred as property evidence. This is all the more

important given the ambiguous meaning of “evidence” a point to which I will return. An evidence gathering procedure whether done by

the Garda Síochána or done by a question and answer session in the presence of a judge could not constitute “administration of

justice” within the meaning of our established jurisprudence making full allowance for the doubts expressed in the fourth edition of

Kelly on the Irish Constitution as to what the exact content of that jurisprudence is. In the Salinas de Gortari case McGuinness J. at

p. 559 of the report states the following:

“It is common case that the procedure under s. 51 of the Act of 1994, is not ‘the administration of justice’ as referred to in

Article 34 of the Constitution.”

14. It is clear that in that case the Minister made that concession and, in my opinion, quite rightly so. The debate over the

characteristics of administration of justice and the relevant extensive case law is well explained in the fourth edition of Kelly on the

Irish Constitution in chapter 6. I do not consider that this is a suitable case in which to enter into a further analysis of this question.

It is sufficient to point out that in this case it was no part of the function of Judge Haughton, the nominated District Court judge to

resolve any justiciable controversy.

15. That does not necessarily mean that the designated judge did not have to act judicially in relation to particular decisions which he

made as to the appropriateness of transferring the property etc. I have no doubt that he did have to act judicially. There are

numerous cases and particularly those relating to the Land Commission in which it has been made clear time and again that an

administrative body may have to act judicially. In doing so it is not, however, administering justice.

16. In an affidavit grounding the original application for judicial review Mr. Patrick Daly, solicitor in the firm of Dermot H. Morris and Co.

who were solicitors for the appellant deposed to his instructions from the appellant that certain items of the appellant’s clothing had

been seized and retained at Ballymun garda station in December 2001 while he was detained there in connection with an investigation

into a burglary committed in this State. The affidavit goes on to explain that the appellant pleaded guilty in an Irish case and that he

then sought the return of his clothing items which had been taken from him in the garda station. He thereupon brought an application

pursuant to the Police Property Act, 1897 and a date for hearing of that application was fixed for the 26th March, 2002. The affidavit

then deals with summonses served on the appellant’s sister and brother-in-law who appeared in the District Court and gave evidence.

In the event that did not materialise but it does have a marginal relevance to which I will refer later in this judgment. What is relevant

however is that the affidavit then refers to an order of the 25th of March 2002 made by Judge Haughton in purported compliance with

the provisions of s. 51 of the Criminal Justice Act, 1994 and says that he was instructed that the appellant would not have agreed to

that order and would have tested and challenged whether the conditions and requirements of the relevant statute had been complied

with had he had notice of the hearing. A supplemental affidavit by Mr. Daly was sworn on the 12th April, 2002. He refers to a hearing

by the former President of the District Court on the 11th of April 2002 in connection with the police property application. It is deposed

to that the President made an order that the clothing must remain in garda custody pending a further order of the District Court.

There may be some uncertainty as to what happened after that but it would appear that if and in so far as there was any perceived

conflict between the order of Judge Haughton and the order of the President of the District Court, this did not prove to be of any

relevance in that counsel for the State authorities undertook that pending the resolution of the legal issues, the President’s order

would be complied with.

17. Jason Brady himself swore two affidavits which in the light of events which happened are not really relevant to the issues on this

appeal and I do not propose to refer to them. The next affidavit to which I intend to refer is that of Mr. James Clerkin, Assistant

Principal Officer with the Department of Justice, Equality and Law Reform, sworn on the 29th April, 2002. Mr. Clerkin deposed to

having received a letter of request dated the 20th December, 2001 for assistance from the Crown Prosecution Service, West

Midlands, Birmingham in the United Kingdom and he goes on to comment on the fact that this letter of request was identical in form to

all other requests received from the Crown Prosecution Service in the U.K. The deponent then says that the Minister was satisfied

that there existed reasonable grounds for suspecting that an offence under the law of the United Kingdom had been committed and

that an investigation into that offence was being carried out in the United Kingdom. The affidavit goes on to state that the Minister

formed the view that items 3, 4, 6, 8 and 9 in the letter of request could be proceeded with by way of application pursuant to s. 51

of the Criminal Justice Act, 1994. After the Crown Prosecution Service had been so notified a further letter arrived from that service

dated the 21st February, 2002. This letter expanded upon the original letter of request. At this point, I think it relevant to refer to

the contents of both letters of request. The letter of the 20th December, 2001 after giving a detailed recital of the alleged facts

contained the following sentence:

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

Ireland”.

18. Underneath that request there were then listed thirteen numbered matters, the items agreed to as aforesaid by the Minister were

as follows:

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

4. To request a coloured photograph of Mr. Brady.

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

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 obtain billing details relating to the usage of this mobile telephone for the period from the 23rd

November, 2001 to the 19th December, 2001.”

19. The letter included the following:

“In relation to the above enquiries paragraphs 1-6 it is accepted that Jason Brady may only be invited to co-operate 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 insofar as they are

applicable.”

20. The suggestion that the applicant be given an opportunity to obtain legal advice coming as it does from the U.K. authorities does

not of itself, in my opinion, strengthen the applicant’s case for judicial review. I would not attempt to speculate on the motive behind

that suggestion. It may well have been purely altruistic but equally it might have been made with a view to having the option at least

of seeking to have the evidence taken before the District Judge admitted as evidence proper at the English trial.

21. Further and up to date details of the English investigation were contained in the second letter of the 21st February, 2002 and

that letter contained a specific request that s. 51 of the Criminal Justice Act, 1994 be availed of in relation to obtaining the evidence

approved by the Minister.

22. Detective Garda Kevin Daly swore an affidavit on the 24th May, 2002 in which he said that Jason Brady, at the time of his arrest,

had a holdall bag containing clothing and other items and that he agreed to hand them over to the gardaí. Furthermore, according to

Garda Daly, the appellant, at Ballymun garda station later consented to hand over the clothing on his person and a mobile phone. It

follows therefore that the detective garda is denying that there was a seizure. I do not think that anything turns on this conflict of

evidence.

23. In a further affidavit of Mr. Clerkin sworn on the 7th February, 2003, he says among other things that are not particularly relevant

to this appeal that at the time of seeking a date for the hearing of the section 51 application, as he calls it, the Minister was not

aware of the existence of a police property application to be made by the appellant on the 26th March, 2002 and he says that it was

not until the 19th March, 2002 that he himself became aware of the police property application. In another paragraph he deposes to

the fact that the hearing date for the taking of the evidence had been fixed in the office of the President of the District Court and

that the Minister played no part in it.

24. Finally, I should mention that the evidence was duly received by Judge Haughton on the 25th March, 2002 and there is an official

transcript of it. The witnesses who gave evidence, all of which were sworn by the direction of Judge Haughton, were Dr. Noel Browne,

Jim Faughnan and Detective Garda Kevin Daly. Dr. Browne gave evidence in respect of Mr. Brady’s medical history in custody.

Detective Garda Daly gave evidence in respect of the clothing and other items held by the gardaí and Mr. Jim Faughnan gave

evidence in respect of the telephone account. For all practical purposes the evidence of Dr. Browne took the form of handing in the

medical reports in the possession of the prison medical services so that they could be photocopied for the purposes of transmission

and Judge Haughton directed that that be done. It should be noted that the letter of request did not actually ask for these records.

It asked for a medical examination to be carried out. It has been argued in this court, however, that the Minister or the judge

receiving the evidence does not have to interpret the letter of request too literally and that in respect of any given item connected

matters though not asked for could be made the subject of evidence transmitted. This submission seems to me to be unsound. In the

event, however, the medical reports are not now going to be transmitted to England pursuant to the undertaking of the Minister.

25. With regard to the evidence before Judge Haughton in relation to property allegedly belonging to the appellant in the possession

of the gardaí there was evidence from Garda Daly of the police property application intended to be made the following day “in respect

of at least some of the items which are in court here today”. The garda went on to explain that the police property application was

an application made by the appellant himself. He said that the application named the majority but not all of the properties taken by

the gardaí. This included 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. The garda then went on to give evidence of the set of original fingerprints of the appellant which he had in his

possession. He said that he had the fingerprints and a photograph accompanying them. It was submitted by counsel for the State to

Judge Haughton that having regard to the terms of the letter of request the mobile phone could not be transferred as it was only

telephone records which were requested but that the clothing could be transmitted and in addition the roll of film and the fingerprints.

The judge, however, took the view that the mobile phone was “a relevant piece of evidence”. Counsel agreed with him and told him

that his jurisdiction was to receive such evidence to which the request might relate as appeared to him to be appropriate for giving

effect. The judge then again expressed the view that the mobile phone itself was something which would be relevant. That approach

of the District Court judge was wrong. He was bound to confine his remit to what was requested. The judge also took the view that

certain photograph albums mainly of the appellant and his daughter were not of evidential value in England. The judge then said the

following:

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

albums. What do you say about the rings?”

26. Counsel stated that they were clothing. The judge, however, considered them jewellery. The following dialogue then took place:

“Justice Haughton: All of the items in the police property application with the exception of the rings and the photo album. I

make an order that all of the other items be handed over to the investigative authority.

Q. Mr. O’Reilly: In relation to the film and fingerprints can you identify the roll of film?

A. That is the roll of film.

Q. Thank you very much. Garda Daly is holding up a roll of film for the purpose of the record. Firstly, judge, I’d ask that the

clothing be made as exhibit A to the transcript. And you have that clothing in court, is that correct?

A. I have judge.

Q. The mobile phone be exhibit B, have you got the mobile phone?

A. I have, judge.

Q. The fingerprints as exhibit C and photographs?

A. Yes.

Q. And the roll of film as exhibit D. I think that comprises the evidence to be transferred. Garda Daly has very kindly handed

me a copy of the list of the items of clothing which are contained within an evidence bag; isn’t that correct?

A. They were the items found in the holdall bag.

Justice Haughton: Alright.”

27. It is quite clear from that bit of transcript what the oral determination of Judge Haughton was. Once the designated District Court

judge has certified the transcript the correct procedure is for him to see to it that the evidence received by him is furnished to the

Minister for transmission to the court, tribunal or authority that has made the request in accordance with the Criminal Justice Act,

1994. Presumably, in this connection it would be correct practice to enclose a formal covering letter setting out precisely the

“evidence” considered appropriate to be transmitted to the Minister. This, of course, would be subject to the provisions of

subparagraph (2) of paragraph 4 of the Second Schedule to that Act. A wrong procedure was adopted in this case in so far as a

formal District Court order was drawn up on a form appropriate to an order of the District Court when administering justice. Indeed,

the document is headed “Courts Act, 1971 section 14”. It refers to “District Court No. 50” and to “one of the judges of the said

District Court assigned to the said district”. It is signed by Judge Haughton under the title “Judge of the District Court assigned to

said district” whereas of course he was a designated person having been designated by the Minister. As though it was a normal court

order there is then the certificate by the District Court Clerk. Quite apart from those defects the actual body of the order is poorly

drawn up in that it simply says:

“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.”

28. It makes no reference whatsoever to the transcript of the oral evidence.

29. This brings me back to the attempt to get evidence from members of the appellant’s family. In the event they did not give

evidence and nothing turns on that. I would point out that in this connection also there were procedural defects which should not be

repeated in the future. Witness summonses were issued as though the case was a District Court case. Indeed, the same was true of

the summons served on Dr. Browne which was in fact signed by a different judge of the District Court. This confusion of roles is most

unsatisfactory. Is it sufficiently wrong to warrant certiorari in this particular case? I think not. I might well have a different view if the

medical reports were still in jeopardy of being transmitted. Because of the formal way that the sitting was conducted and because of

the formal documentation in court form it would be more than understandable that a doctor such as Dr. Browne would be intimidated

against raising any ethical problems about producing the medical reports. But that does not now arise. The same is true in relation to

summonses served on the relatives. That does not matter in practice now because they did not agree to give evidence. Mr. Faughnan

was a purely formal witness and there was no ethical problem in relation to his evidence and Garda Daly would have been well aware

of the purpose of the procedure and his evidence would have had to be identical irrespective of what kind of documentation was

used. At any rate he would not have been served with a witness summons.

30. I am equally satisfied that there are no grounds for certiorari based on an unconstitutional interference with the Police (Property)

Act application for the reasons set out in the judgment of the Chief Justice.

31. I turn now to consider whether judicial review should be granted on the principal ground for which it is contended by the

appellant, that is to say that he ought to have been given notice of the proceedings. I am satisfied that notice is not required in the

absence of special circumstances, if the exercise is evidence gathering for an investigation only. It would appear that that is the case

here.

32. I agree with the view of the Chief Justice that a specific request to the Minister would be necessary to enable the “evidence”

gathered to be used at the trial. At that stage the Minister would have to ensure that the accused would have a right to object to

the evidence at the trial if, as in this case, no notice of the Irish hearing had been given to the relevant person.

33. Secondly and quite apart from that consideration even if it were thought that the relief could still be justified and perhaps

appropriate on one view, at the end of a hearing certiorari or any other discretionary relief on judicial review can always be refused

as a matter of discretion provided of course the discretion is properly exercised. In a purely domestic case, it may well be a valid

exercise of the discretion to grant the relief where it is thought that the State’s behaviour in the case ought to be penalised. But

where the case is one such as this with international dimensions and where the State is effectively playing the role of agent for a

requesting State under an international convention, I think that the court should solely be concerned with what might be just or

unjust and should not be precluded necessarily from refusing certiorari merely because the Irish State authorities have adopted wrong

procedures provided that no injustice is caused to a party concerned.

34. The judgment of Hardiman J. has drawn attention to another aspect of the case on which I would like to comment. He points out

that counsel for the State, when appearing before Judge Haughton, stressed the importance of systematically ordering the exhibits

produced and which the judge would think appropriate to be transferred to England because they might be required as evidence.

Hardiman J. then goes on to observe that before this court, senior counsel for the State suggested that the reference to “evidence”

in the District Court was a mistake. Hardiman J. expresses considerable concern about this discrepancy. I am satisfied that if there

was a “mistake” it arose on the appeal before this court and not before the District Court judge. I see no point in an evidence

gathering process which includes the transfer to England of goods and chattels of a suspect unless it is envisaged that some one or

more of such goods and chattels may in fact be produced ultimately at a trial as evidence. It was, therefore, perfectly sensible to

suggest a systematic ordering of exhibits and I agree with the Chief Justice that no significance should be attached to it. I am

satisfied, therefore, that counsel for the State in the District Court made no mistake.

35. Undoubtedly Hardiman J. has highlighted a serious problem about this legislation. The legislation applies to jurisdictions which do

not have common law systems at all and Irish courts would have no idea how judges in those courts would approach the question of

the admission of “evidence” transferred at the ultimate trial. Those courts are perfectly entitled to have their own rules of evidence

which might not necessarily include a hearsay rule for instance. But the right of an accused to raise objection to evidence against him

is fundamental and universally recognised in all civilised countries. If, therefore, the “evidence” is taken before the District Court judge

without notice to the suspect it is incumbent on the Minister in my view to so inform the requesting prosecuting authority.

36. In view of the fact that no criminal proceedings had in fact been instituted and having regard to what has been said in court by

counsel for the State authorities, I do consider that in this case, at any rate, the request must be treated as confined to

investigation. I would reserve however to a suitable case a final opinion as to whether as a matter of law in all circumstances section

51(5) precludes the use of evidence provided for a criminal investigation at a trial without the consent of the Minister. It depends on

the meaning to be given to the word “purpose”. I share some of the apprehensions of Hardiman J. though not to the same extent as

he does that a domestic power in a relevant foreign country could be exercised so as to use the evidence furnished as evidence in

the trial without more. Even if that is theoretically possible, I am satisfied that in this particular case the court in its entitlement to

take general notice of every day matters, is well aware that the requirements of a fair trial in the jurisdiction of England and Wales

are broadly similar though not identical to the requirements in this jurisdiction and even more importantly that the European

Convention on Human Rights is incorporated into English law. I think it inconceivable therefore that a trial judge made aware of the

fact that transmitted articles were so received by the designated District Court judge and transmitted without notice to the accused

would exclude the right of the same accused at the trial to put forward an objection to the evidence.

37. In the light of the views which I have expressed on the nature and requirements of the statutory scheme, it is clear that in my

view section 51 of the 1991 Act is not repugnant to the Constitution. I would dismiss the appeal brought on this ground.

38. I would affirm the order of certiorari made by the High Court because it is not in dispute that that order was correctly made. The

District Court as such was never concerned in the proceedings and, accordingly, the order as drawn up was quite inappropriate.

39. In every other respect also, I would dismiss the appeal subject to the qualification relating to the mobile telephone indicated by

the Chief Justice. Counsel for the State authorities has already made clear that he had instructions that the Minister would be

prepared to give the undertaking relating to the medical reports.