Supreme Court quashes Tribunal costs decision without ruling on constitutionality of s.6 1979 Act.

[2010] IESC 21

THE SUPREME COURT

119/06

Denham J

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN:

JOSEPH MURPHY, FRANK REYNOLDS AND

JOSEPH MURPHY STRUCTURAL ENGINEERS LIMITED

Plaintiffs/Appellants

- and -

MR JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS

AND PAYMENTS), HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD

KEYS (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE

ATTORNEY GENERAL

Defendants/Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of April, 2010.

Background.

1. In this case the appellants, all of whom are part of what I have described below as the “Murphy interests”, seek certain

declaratory reliefs and seek to quash by judicial review a decision of the Flood Tribunal of the 9th day of November, 2004, refusing

them costs. They also seek, if necessary, a declaration that s.6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979

(hereinafter “the 1979 Act”) is unconstitutional.

2. The Flood Tribunal, more formally the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter “the Tribunal”)

which was established as long ago as 1997 and is still continuing, is one of the latest in a series of Tribunals of Inquiry established in

this country. It is established in the manner envisaged by the Tribunals of Inquiry Act 1921 as amended (“the 1921 Act”). This Act is

one of the very last Acts of the old United Parliament of Great Britain and Ireland.

3. Though there have been Tribunals of Inquiry since the 1920s, the modern series of tribunals may be regarded as commencing with

the Beef Tribunal of the early 1990s. These tribunals, as this one amply illustrates, have become immense in their duration and,

consequently, in their costs. It is fair to say that both the length of the present inquiries and their cost were utterly unimaginable not

only in 1921 but even in 1990 and in 1997.

4. I am unaware of any international comparator, even amongst States much richer than Ireland, whose public inquiries approach ours

for length, complexity or expense, or who exhibit such readiness to have recourse to a tribunal. This is to be deplored from every

point of view. I agree with the academic authority cited by Fennelly J. in his judgment in this case who said:

“The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations may be

made against persons who may have little opportunity of defending themselves and against whom no legal charge is

preferred”.

and:

“an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not infrequent”.

5. Equally, I wish urgently to recommend to those responsible for the establishment of tribunals a book “Illinois Justice” by Kenneth A.

Manaster (University of Chicago Press, 2001). This is an account of an inquiry presided over by the future U.S. Supreme Court Justice

John Paul Stevens into suspected bribery by banking interests of Justices of the Illinois Supreme Court. The inquiry began in mid-June

1969 and was over by the end of July 1969. Stevens announced the terminal date before he began his work. He insisted on the

narrowest possible terms of reference. He brooked no extension of them. The cost of his six week inquiry was a miniscule fraction of

any of our tribunals. In his foreword to Manaster’s book, Justice Stevens contrasts this speed and economy with the “Special

Counsel” inquiries subsequently established in the United States. Yet none of the latter, to my knowledge, have extended to anything

like as long as the present Tribunal.

6. Both the length and the cost of tribunals are due in part to the enormous powers which have been conferred on them. They have

power to require any person or body in the State to cooperate with them, to produce enormous volumes of documentation and to

make themselves available to be questioned. Confidentiality can be set aside and the privilege against self-incrimination does not

apply. Sometimes the cost of doing this which the individual or company must bear are themselves enormous. It will not be reimbursed

for years, if ever. The tribunal may withhold any re-imbursement at all. Furthermore, in recent times tribunals have taken to

conducting a good deal of their work in private. This means that the material they have obtained will normally be known only to the

tribunal and may be selectively concealed from the parties. This has proved enormously controversial in the past. See the decision of

this Court in O’Callaghan v. Mahon [2006] 2 IR 32.

7. If the powers of the tribunals are enormous, so too are the consequences of their deliberations. We have seen people forced to

leave public life, put to enormous expense and even imprisoned as a result of their interactions with the Tribunal.

8. In recent times too, attempts have been made to find cheaper and less cumbersome ways of inquiring into matters of public

concern than that provided by the Tribunal of Inquiry. One of these has been the notion of a parliamentary committee. This, indeed,

is ironic since the 1921 Act was passed against a background where the previous preferred method of inquiry had been the

parliamentary inquiry. These, over a period of centuries, had transpired to be almost invariably corrupt or biased. This unhappy history

is summarised in Maguire v. Ardagh [2002] 1 IR 385. This case also treats, to some extent, of the unhappy history of certain

American congressional inquiries notably those carried out by the now notorious House Committee on Unamerican Activities. For a

detailed treatment of the most unfortunate history of British Parliamentary inquiries see Prof. George W. Keeton “Trial by Tribunal; a

study of the development and functioning of the tribunal of inquiry”, London, Museum Press (1960). In Maguire, a group of gardaí

whose involvement in a chain of events in which an unfortunate man was shot dead was the subject of a parliamentary inquiry,

succeeded in preventing the inquiry from taking place in a political forum. This led to the establishment of the Barr Tribunal.

9. Over the years, even the years since 1990, all sorts of people have taken issue with the powers which certain tribunals sought to

exercise in their particular cases. Some of these have been commercial interests but at different times gardaí, journalists, a Cardinal,

solicitors, members of Dáil Éireann and even the Government of Ireland itself have sought to challenge the powers which a tribunal,

commission or parliamentary committee proposed to exercise in their regard. These challenges have given rise to a substantial body of

case law, some of which will be referred to below.

The Flood Tribunal and the Murphys.

10. Of the various tribunals of the last two decades, the Flood Tribunal is by far the best known. In part this is due to its

unprecedented length (with the possible exception of its contemporary, the Moriarty tribunal). and its consequent unparalleled

expense. But it is also due in part to the very dramatic evidence which has been given before it and to the fact that certain

prominent people have been very publicly ruined, and in some cases even imprisoned, as a result of their interaction with it.

11. Probably no part of the Flood Tribunal’s dealings have attracted more public attention than that featuring Mr. James Gogarty who

made allegations of the most serious kind against his former employers, the appellants herein, and others. The destructive effect of

these allegations on individuals, the flamboyance of Mr. Gogarty as a witness and his striking gift for phrase-making have all

contributed to this. One of his phrases, indeed, may fairly be said to have entered the vocabulary of Hiberno-English.

12. In other words, the political and social impact of the Tribunal has been enormous and is beyond doubt. Equally, its unique

capacity to damage, even to ruin, individuals is well established.

13. The appellants herein, who for reasons shortly to be explained I shall refer to as the “Murphy interests”, have been before this

Tribunal principally or solely because Mr. Gogarty made allegations against them. Their involvement was involuntary: they were

compelled to become involved in the Tribunal, to make discovery or disclosure of huge quantities of material at enormous expense to

themselves and to participate in the sittings of the Tribunal for the huge span of 163 sitting days over a period of several years. After

all that, the Tribunal made findings adverse to them: they were found to have been involved in the making of corrupt payments and

to have “obstructed and hindered” the Tribunal.

14. On the basis of these findings, when they applied to recover some of the enormous costs they had been put to, they were

refused both on the basis of the Tribunal’s substantive findings and its findings in relation to “obstruction and hindrance”.

Furthermore, they are on notice that at a future sitting of the Tribunal it will be urged that the Tribunal, of its own motion, should

make the Murphy interests liable, to a greater or lesser degree, for the costs incurred by other interests, or for the costs of the

Tribunal itself. This is plainly capable of amounting to a truly enormous financial imposition.

15. The Murphy interests make a number of complaints about this state of affairs. They say that the Tribunal had simply no power to

make findings of “obstruction and hindrance” in relation to them. Secondly, they say that even if the Tribunal had such power in

principle, it had no power to make these findings in the manner that it did, which they say was grossly unfair and breached their

entitlement to fair procedures. They also say that the process whereby these findings were arrived at was grossly defective and

unsustainable in law or in elementary logic. One of the allegations of breaches of fair procedures they make is that they were quite

deliberately deprived of evidence which the Tribunal had in its possession and which might have enabled them (in the somewhat

complex way described below) to avoid the findings of obstruction and hindrance. They say that they were deliberately deprived of

material which might have been absolutely explosive in its effect on the credibility of Mr. Gogarty.

16. The Tribunal says it was fully entitled to come to the conclusions that it did and to refuse costs to the Murphy interests. They

take a number of points which are more or less technical in nature (in relation to delay, relevance etc.) but more generally they claim

that they were fully entitled to come to the conclusions that they did and indeed that they had to do so in order to exercise their

statutory costs jurisdiction. They admit that certain material was withheld from the appellants and further admit that it should not

have been withheld but do not admit that the appellants suffered any disadvantage in that regard.

17. I now proceed to consider, in all necessary detail, the nature of this challenge and the answer made to it.

Costs and the Legitimacy of Tribunals.

18. As noted above, certain persons have in the past been heard to complain, and to take their complaint to the courts, that the

enormous prerogatives of a Tribunal of Inquiry is capable of destroying them, financially and in terms of reputation, much more

obviously than even a criminal court could do, but that the tribunal’s procedures afford them few or none of the protections which

would be available to them in the court forum. This contention has always been rejected. It was rejected in strong terms by this

Court in Goodman v. Mr. Justice Hamilton [1992] 2 IR 542. This decision is now the foundation, in Irish law, of the constitutionality of

the Tribunal of Inquiry, as known in our law. But since that judgment was given, the nature of tribunals in themselves has been

altered, by legislation, by parliamentary resolution establishing or continuing certain tribunals including this one and by the

exponential, and wholly unpredicted, expansion in the length of Tribunals of Inquiry and in the costs of them. It would be wholly

unrealistic not to acknowledge that these costs can only be described as truly enormous.

19. The appellants here have been refused their own costs of (involuntarily) participating in the tribunal and of the vast discovery

they made, (even though they were legally required to undertake this) and are on risk of having enormous costs awarded against

them. It was made clear in the course of this appeal that the State itself has “indirectly” applied for such an award of costs to be

made. Whether a tribunal empowered to make orders of such enormous financial consequence can nonetheless be described as being

(as, on the authorities, tribunals must be) “incapable of imposing liabilities” “sterile of legal effect” on the basis that it merely

expresses an opinion, and “this opinion is devoid of legal consequences”, is the most general of the issues raised by the appellant in

these proceedings.

20. Other issues turn more narrowly on aspects of the remit, history and conduct of this particular tribunal. The most notable of these

is the admitted failure of the Tribunal to disclose to the Murphy interests certain material, which might fairly be described as

explosive, relating to the statements made by or attributed to their principal accuser. But it is important to note that the appellants

have chosen to challenge, not the substantive findings which the Tribunal made adverse to them, but only the finding in relation to

costs.

21. Findings gravely adverse to the Murphy interests were made by the Tribunal in its second interim report (issued on the 26th

September, 2003) and its third interim report issued some fifteen months later on the 21st January, 2004. The appellants’ proceedings

were instituted on the 20th April, 2004.

22. I use the phrase “the Murphy interests” because of what is said in chapter 17 at p. 141, para. 17-04 of the second interim report

of the Tribunal under the heading “Co-operation with the Tribunal”:-

“The findings made against Mr. Joseph Murphy Snr and Mr. Joseph Murphy Jnr apply pari passu to the companies within

the Murphy Group to whom legal representation was granted including Joseph Murphy Structural Engineers Limited, Lajos

Holdings Limited. The Grafton Construction Company Limited, Reliable Construction (Dublin) Limited, Barrett Developments

Limited (in Liquidation), Turvey Estates Limited, Finglas Industrial Developments Limited (in Liquidation), Helmdale Limited

(in Liquidation), Gaiety Stage Production Limited, Gaiety Theatre (Dublin) Limited, Finglas Industrial Estates Limited and

Wexburn Limited”.

23. Mr. Roger Copsley and Mr. Frank Reynolds appear also to have been identified with the appellants and their companies, and are

included in the above phrase as used by me.

24. The appellants’ complaints centered principally on the activities of the Tribunal concerning that aspect of its inquiries known as

the “Gogarty Module”. This related to allegations made by a Mr. Gogarty, formerly an executive with the Murphy Group, and in

particular to an allegation that the appellants had made a payment in cash to the former Government Minister, Mr. Ray Burke. It was

specifically alleged that Mr. Gogarty and Mr. Joseph Murphy Junior had been present when this payment was made at Mr. Burke’s

home in Swords, Co. Dublin, in 1989.

Issues

25. Two key issues were raised on behalf of the appellants:

(1) whether the Tribunal was entitled to take into account its substantive findings in adjudicating on the issue of costs

and

(2) whether the Tribunal was entitled to make findings of “obstruction and hindrance” against the appellants either (a) at

all or (b) in the manner in which it did.

26. The appellants’ proceedings are directed exclusively, on (1) the costs order already made, refusing the appellants their costs, and

(2) a further cost issue yet to be determined i.e. whether the appellants can be made to pay the costs of the Tribunal or of any

other party. As will be seen, certain of the points urged by the appellants would, if upheld, appear to have implications for the

substantive findings of the Tribunal as well as for its power to grant or refuse costs orders. However, the present proceedings focus

exclusively on the costs issues. This appears to be, firstly, because of the enormous expense to which the appellants have already

been put and the risk of being forced to pay some or all of the equally enormous costs of other parties. Secondly, on the basis of

authorities to be discussed below, the appellants say that because costs orders represent a positive refusal of a benefit or

entitlement or imposition of a liability, such orders, are outside the class of findings which a Tribunal of Inquiry may lawfully make,

since such findings of a tribunal of inquiry are required to be “in vacuo” and to be “legally sterile”. The point was also made by counsel

that the substantive findings against the appellants appear to turn on issues of credibility which it is difficult to ask a court to review,

drawbacks less obviously present in an attack solely on the Costs order.

The Findings and how they were arrived at.

27. Leading counsel for the Murphy interests, Mr. Michael Cush S.C., referred to chapter 11 of the second interim report entitled

“Gogarty Module”. This is subtitled: “Payment of Money to Mr. Ray Burke T.D. at his Home at Briargate, Swords, Co. Dublin in June

1989 at a Meeting Attended by Mr. James Gogarty”. This was very largely an issue of pure credibility and the Tribunal concluded at p.

77, para. 11 - 23 that:-

“that the conflicts which are apparent from consideration of the evidence of the parties, could not be explained on the

basis that they were innocent failures of recollection, mistakes, or misinterpretation of the true facts. The Tribunal

concluded that the divergences in the accounts given by the parties could only be explained on the basis that some

party, or parties, had deliberately set out to mislead the Tribunal as to the true circumstances leading to the meeting

with Mr. Burke and the payment of monies to him. In broad terms the issue arising was whether the account given by Mr.

Gogarty was true or whether the accounts given by all of the other persons present in Mr. Burke’s house at the time of

the meeting were true. Certain facts were common case namely (1) a meeting did in fact take place at the home of Mr.

Burke in June, 1989, (2) Mr. Gogarty, Mr. Michael Bailey and Mr. Burke were present, (3) a substantial sum of money,

amounting to not less than £30,000, was paid to Mr. Burke at this meeting partly in cash and partly by cheque and the

majority of which was in cash. The essential disputes between the parties arising from the evidence in relation to the

JMSE funded payment were (1) whether this payment was made as a political donation, or as a bribe (2) whether this

payment was made with the knowledge of the Murphy interests or not.”

28. From the appellants’ point of view, the question of whether the payment was a political donation or a bribe was irrelevant and

hardly arose at all. Their case was that they knew nothing at all about it. This, in turn, depended on the credibility of the witnesses

on the issue of whether or not Mr. Joseph Murphy Junior was at the meeting. He was adamant that he was not. Only Mr. Gogarty said

that he was. It must always be borne in mind that the meeting at which he was allegedly present was said to have happened in 1989;

the evidence in relation to it was given about a decade later.

29. According to the Tribunal:

“Mr. Gogarty’s evidence was that Mr. Murphy Jnr. had attended three meetings in Dublin during the period between the

end of May 1989 and the 15th June 1989. The first of these meetings were said to have been a meeting “a couple of

days” before the 8th June 1989 which took place at the premises of JMSE at Shanowen Road, Santry, and which was

attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, on behalf of the Murphy interests, and

by Mr. Michael Bailey. Mr. Gogarty said that it was at this meeting that Mr. Bailey spoke of his claimed ability to procure

planning permission through the assistance of Mr. Burke, and certain named councillors and officials.

The second meeting was said to have taken place on the afternoon of the 8th June 1989, and was said to have been

attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, at which the assembled monies, intended

to be paid to Mr. Burke, were counted out by Mr. Gogarty in anticipation of a visit to Mr. Burke’s home on the same date,

a visit which was unexpectedly called off.

The third meeting some days after the 8th June 1989, was the meeting said to have taken place at Mr. Burke’s home

which was said to have been attended by Mr. Michael Bailey, Mr. Joseph Murphy Jnr and Mr. James Gogarty, at which it is

said that two envelopes were passed to Mr. Burke which were believed to contain £40,000 each, the first envelope being

passed over by Mr. Joseph Murphy Jnr. and the second by Mr. Michael Bailey.”.

30. These findings occur at p.129, paras 14-92 to 14-94 of the second interim report. The issue before the Tribunal, in one sense,

could not have been simpler. As counsel for the appellants put it “the issue is whether we were there at all”.

31. It is, of course, very difficult indeed to establish anyone’s precise whereabouts on any given day a decade ago. And even if one

does, there is always a risk that one’s accusers will react by saying that their allegation really relates to a time less specific, “on or

about” a particular day or something similar. However, Mr. Joseph Murphy Junior focussed on the meeting of the 8th June, 1989

because he said he was in London on that day and was able to call witnesses who had telephoned him on the morning of that day in

London and also that night in London. In relation to an earlier date, he could show he had been in Waterford for part of the day.

32. The appellants complained that there was never a reasoned or evidence-based finding that Mr. Joseph Murphy Junior was at

either meeting. Instead, there were findings, to be quoted below, that he “could have” been there which then morphed, without

further evidence, explanation or justification into a finding that he was there. At p.130, para. 14 - 99 of the second interim report, it

was held that “notwithstanding the alibi evidence offered in relation to Mr. Murphy Jnr’s meetings with friends in Waterford, a meeting

could have taken place with Mr. Bailey on either the 31st May or 1st June and still have allowed Mr. Murphy Jnr. to attend his

meeting in Waterford later on the 1st June”. (Emphasis added)

33. In the following para. 14-100, the Tribunal expressed itself as follows:

“The Tribunal is satisfied that Mr. Murphy Jnr. could have attended a meeting in Dublin on the 8th June 1989

notwithstanding the evidence that he had received telephone calls in London both that morning and that night. A meeting

could have taken place at JMSE’s premises on the afternoon of the 8th June provided Mr. Murphy Jnr. had flown from

London to Dublin and returned on the same day.”

(Emphasis added)

34. At p. 132, para. 14 -117 the Tribunal concludes “that the alibi evidence does not prove that Mr. Joseph Murphy Jnr. could not

have attended at least three meetings in Dublin between the 31st May and the 15th June 1989”. (Emphasis added)

35. This, say counsel for the appellants, amounts to a reversal of the onus of proof. It is certainly a striking double negative, not

apparently a sound platform for the next mental leap in the findings.

36. Thus, in considering the allegation made by Mr. Gogarty in which he spoke of a series of meetings in or about the first half of

June, 1989, and such evidence as Mr. Murphy Jnr. was able to assemble in relation to his movements at that time, the Tribunal first

concluded that Mr. Murphy Jnr. “could have” attended those meetings or certain of them and secondly, in the passage as quoted

above, that what the Tribunal called “the alibi” did not prove that he could not have attended them.

37. However, by the time it came to set out its findings at p.139, (chapter 16 “Summary/Conclusions”) the Tribunal said, at para. 16

- 17 that “[t]the parties present at the meeting [where the money was paid] were Mr. Burke, Mr. Michael Bailey, Mr. Joseph Murphy

Jnr. and Mr. James Gogarty”. (Emphasis added). At this point, “could have” has been first transposed into “can’t prove the contrary”

and then to “was”, an unqualified positive finding of fact. The seamless (to use Mr. Cush’s word), silent and unreasoned transition

from bare possibility to an unqualified statement of fact seems possible only by a virtue of a reversal of the onus of proof. No

explanation whatever is offered of it. This is unsatisfactory in itself. The development in the findings from “could have” to “can’t prove

the contrary” to “did” is an unreasonable one. It is, in legal terms, irrational.

38. Mr. Cush alleged, and it was not denied, that the Tribunal moved from “could have attended the meeting” to “did attend the

meeting” without any intermediate stage, argument, evidence or linkage. This process was, said Mr. Cush, entirely unargued and a

finding that Mr. Murphy Junior attended the meeting seemed to follow seamlessly, in the Tribunal’s mind, from an initial finding merely

that he “could have” attended the meeting. Furthermore, the second interim report gives no indication as to why or how the

appellants’ account was rejected.

Consequences of the foregoing.

39. Mr. Cush’s primary emphasis, however, was not on the findings summarised above in themselves, nor even on the question of

whether the Tribunal’s process of reasoning, insofar as it appears from the second interim report, is capable of logically subtending

the findings made. Instead, Mr. Cush was concerned to illustrate the effect of the foregoing, not on the substantive findings of the

Tribunal but on the findings it made as to whether the principal representatives of the Murphy interests had, or had not, “obstructed

or hindered” the Tribunal and what, precisely, their attitude to it had been. He then proceeded to follow the findings on these latter

questions in turn through to the Tribunal’s decision on the costs issue it has already decided, by way of supporting his attack on that

decision.

“Obstructed and hindered”

40. In the case of Mr. Joseph Murphy Senior and Mr. Joseph Murphy Junior, the Tribunal found at pp. 144 to 145, paras. 17 - 15 and

17 - 16 of its second interim report that each of them “obstructed and hindered the Tribunal”. In the case of Mr. Joseph Murphy

Junior, who was most directly involved, as the Tribunal found, in the “Gogarty Module”, this hindering and obstruction was said to

consist of:-

(a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of Mr.

Burke in June 1989 at which he handed to Mr. Burke a sum of not less than £30,000.

(b) Failing to give a truthful account of his dealings with Mr. Michael Bailey with regard to the participation proposal in

which it was envisaged that Mr. Michael Bailey would receive 50% of the value of the Murphys’ North Dublin lands in

return for procuring planning permission and building bye law approval in respect thereof.

(c) Giving a false account of the involvement of Mr. James Gogarty in the sale of the Murphy lands and the role played by

him in connection with the payment of JMSE monies to Mr. Burke.

(d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the Sunday Business

Post articles.

(e) Falsely constructing an alibi which was untrue.

41. It will be apparent that matters set out at (a) and (e) above relate wholly to the “Gogarty Module” and the matters set out at (c)

relate at least partially and probably wholly to it. The other paragraphs related to connected transactions. It will also be observed

that what the Tribunal calls an “alibi” is what they earlier described as “alibi evidence” which was evidence that Mr. Murphy Junior

was in London in the morning and evening of the day at which one of the controversial meetings, that of the 8th June 1989 took

place and in Waterford on another date. It will be remembered that the Tribunal had not previously found that this alibi was actually

false or untrue. It had simply been found that it did not exclude the possibility of Mr. Murphy Junior’s attendance at the relevant

meeting. This, in fact, is the same as saying that it was not an “alibi” at all. It is clear that, though the “alibi” had not been found to

be untrue in the earlier findings of the Tribunal, it has now in some way been found to be untrue without further argumentation or

justification. This conclusion is baldly stated in chapter 17 of the second interim report. Again, this process evidences a lack of

reasoning or rationality.

The Third Interim Report.

42. In the Tribunal’s third interim report further findings adverse to the Murphy interests were made by the Tribunal and there was,

additionally, further findings of hindrance and obstruction against Mr. Joseph Murphy Junior. These latter are to be found in chapter 8

at p.20 of the Third Interim Report. The focus of the third interim report was primarily on payments allegedly made to Mr. George

Redmond. It is fair to say that most of the argument on the hearing of this appeal and almost all of the factual references with which

it was supported, related to the second interim report. But the two reports are inexplicably connected in terms of personnel, structure

and otherwise: the contrary was not submitted. Mr. Cush advanced many of the same criticisms in relation to unsupported mental

leaps leading to the findings of hindrance and obstruction as has been summarised above in relation to the second interim report.

Legal significance of the term “obstructed and hindered”.

43. At p. 141, para. 17 - 03 of its second interim report, the Tribunal had this to say:-

“Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its inquiry, which that

person wilfully knows to be false or does not believe to be true or who by act or omission obstructs or hinders a Tribunal

in the performance of its functions, commits a criminal offence.” (Emphasis added)

44. This is, in fact, a paraphrase of a statutory provision, discussed below. The Tribunal’s words are quoted here so as to

demonstrate that the substance and meaning of the statutory provision was present in the Tribunal’s mind when it made the findings

of obstruction and hindrance, summarised above.

45. Moreover, in the preface to the second interim report, the Tribunal said:

“All citizens have a duty to co-operate and assist a Tribunal and to tell the truth when summoned to appear at a public

hearing. It is with considerable regret that I have concluded that I must report, as one of my findings, that certain parties

who appeared before me chose not to co-operate with the Tribunal in its task and further, having been duly sworn did not

tell the truth.

The extent of which their actions may have involved them in breaches of the criminal law is a matter upon which the

Director of Public Prosecutions has absolute and exclusive jurisdiction. I have decided to forward a copy of my Report to

him to take such steps, and to do with it, what he, in his absolute discretion, considers appropriate.”

47. Again, I quote this passage principally as evidencing the state of mind of the Tribunal. However, it is necessary to point out, as

will in any event be obvious, that the question of whether or to what extent any person involved in the Tribunal may have committed

a breach of the criminal law is a matter, not for the Director of Public Prosecutions, but exclusively for the courts if and when the

Director of Public Prosecutions or any other competent prosecutor initiates a prosecution.

48. The statutory provision referred to above is s.3 of the 1979 Act. Insofar as relevant this provides as follows:

“(3) The Principal Act is hereby amended by the substitution of the following subsections for subsection (2) of section 1:

(2) If a person -

(a)-

(b)-

(c)-

(d)by act or omission, obstructs or hinders the tribunal in the performance of its functions…

(e)-

(f)-

the person shall be guilty of an offence.

(2A)(a)A person guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding

£10,000 or at the discretion of the court to imprisonment for a term not exceeding 2 years or to both such fine and such

imprisonment.”

49. When this statutory citation and the extracts from the second interim report quoted above are considered in light of the findings

of the Tribunal in relation to the appellants it will be clear that the finding that: “Mr. Joseph Murphy Junior obstructed and hindered

the Tribunal”, is a finding that Mr. Joseph Murphy Junior committed a criminal offence. In light of the fact that the first way in which

the Tribunal found that he obstructed and hindered the Tribunal was by “failing to give a truthful account” of a particular matter and

the fifth way was by “falsely constructing an alibi which was untrue” it will be clear that the findings of the Tribunal amounted to a

finding, not only of the actus reus of a criminal offence but also of the mens rea of the offence, said to have been committed by a

named person. It is also a finding based entirely on the substantive findings and is indeed presented in substance as a corollary of

them. There is no basis for the “obstructed and hindered” finding other than the substantive finding. This conclusion is neither

logically nor legally valid. Merely because one witness’s evidence is preferred to that of another does not mean, or imply, that the

other has committed a criminal offence, whether of obstruction or hindrance or otherwise. This proposition was not defended on this

Appeal.

50. Whether a finding of this sort is one which it is proper for any Tribunal of Inquiry to make, or for this Tribunal to make in the

circumstances in which it did, will be discussed below.

51. It is clear from the introductory portion of chapter 17 of the second interim report (at p. 141, para. 17 - 04) that, in the

Tribunal’s mind, firstly, there existed an alternative option existed of making a finding of non-cooperation in lieu of a finding of

hindrance and obstruction, and secondly that a finding, even of failure to co-operate “can have serious consequences both as

regards costs, and otherwise”, as the Tribunal put it.

52. Non-cooperation, unlike obstruction or hindrance, is not a criminal offence. In the same module in which the finding of obstruction

and hindrance were made against Mr. Murphy, three other persons were found not to have co-operated, but no more.

53. It is to the general topic of costs which I now turn, prior to considering the propriety of the findings summarised above in the

circumstances in which they are made.

Costs.

54. The Murphy interests perforce, participated in the workings of the Tribunal for a total of 163 hearing days. They were represented

by solicitors and counsel and engaged in regular communication with the Tribunal and, perforce, provided the Tribunal with very

significant and exhaustive discovery. It is quite clear, and indeed obvious, that this was a remarkably expensive process which was a

consequence of the decision of Dáil Éireann to establish the Tribunal, with the powers contained in the 1921 Act as amended.

The Ruling on costs.

55. The Ruling on the appellants’ application for costs was delivered on the 9th November, 2004. In the form in which the Tribunal

delivered the ruling it was described as the “Ruling in relation to application of Joseph Murphy, Structural Engineers (JSME). Its

associated Companies, Directors, Officers and Auditor”. The ruling set out the findings in relation to the above-mentioned persons

contained in the second interim report and likewise in the third interim report. The new Chairman of the Tribunal then went on to say

at pp. 6 to 7:-

“The issue I have to consider is whether, having regard to the entire of the relationship between the Applicants and the

Tribunal, a case can reasonably be made on behalf of the Applicants that the incidences of cooperation on the Applicants’

part were such as would enable me to, for good reason, exclude or separate them from the very serious adverse findings

relating to cooperation that were found by the Tribunal in both the Second and Third Interim Reports…

The Applicants were between them found to have knowingly given false evidence and in the case of the late Mr. Joseph

Murphy Senior, Mr. Joseph Murphy Junior, Mr. Frank Reynolds and Mr. Roger Copsey to have colluded with each other to

mislead the Tribunal. I must accept these findings and I have to assume they were properly and fairly made.

Taken as a whole the adverse findings of obstructing and hindering the Tribunal made against the Applicants were so

serious, so extensive and so far reaching as to clearly lead any reasonable person considering them to the conclusion that

the individuals concerned, particularly those I have named in the preceding paragraph, were intent from the outset in

ensuring that the Tribunal would not find the truth…

To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and disreputable, and

amounts to a fundamental disregard for the very purpose of the Tribunal and their legal duty to cooperate with it.

In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered

awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of

the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any party who fully

cooperates with the Tribunal by giving a truthful account of their knowledge of the events under inquiry can reasonably

expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues

such as corruption.

In all the circumstances (sic) therefore I do not believe it would be appropriate to award any costs to the Applicants and

I therefore refuse their application.” (Emphasis added)

56. Some of the language in this quotation reflects the fact that the findings referred to were those of the former Sole Member, Mr.

Justice Flood, while the costs decision was that of the Chairman of the three judge tribunal who succeeded him.

Legality of above findings and decisions of the Tribunal.

57. Article 38.1 of the Constitution provides as follows:

“No person shall be tried on any criminal charge save in due course of law.”

58. As we have seen above, Mr. Joseph Murphy Junior and others, have been found and declared by the Tribunal to have wilfully

obstructed and hindered it in the performance of its functions. This, by reason of the amendment to the 1921 Act which is quoted

above, is a finding of a criminal offence. But it has not been, and could not be, contended that this finding was made “in due course

of law”, as that phrase is used in Article 38.1 of the Constitution. This is not disputed. But, it is said, that Article 38.1 applies only to

trials and that the proceedings of the Tribunal do not constitute a trial or trials, and result only in the expression of opinions, which

have no legal consequences.

59. Further, Article 34.1 of the Constitution provides that:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this

Constitution, and, save in such special and limited cases as maybe prescribed by law, shall be administered in public.”

60. The antiquity and importance of the concepts underlying Article 38.1 of the Constitution in particular are of central importance. In

Conroy v. The Attorney General [1965] IR 411, Kenny J. said at p. 415 that:

“I think that s.1 of the Article is an echo of a clause in the Great Charter of Ireland granted in 1216… [The] phrase “due

process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of

America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1

of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with

due course or due process of law.”

61. The Great Charter of Ireland is Magna Carta as transmitted to Ireland in the remote year 1216.

62. In one of the cases most discussed on the hearing of this appeal, Goodman International v. Hamilton [1992] 2 IR 542, McCarthy

J. expressed similar sentiments at p.609. He said:

“In Ireland, having regard to the express provisions of Article 38, of which s.1 is an echo of the phrase “due process of

law” in the Fifth Amendment to the Constitution of the United States of America, it may be more relevant to look to

decisions of the United States Supreme Court touching on the scope and range of parliamentary investigation or inquiries.

The prescription of the Fifth Amendment, so far as relevant, is not to be deprived of life, liberty or property without due

process of law; this may have a wider scope than the prescription of Article 38 s.1: “No person shall be tried on any

criminal charge save in due course of law”. The rights identified at common law, such that no man be put to answer

without presentment before justices, are in my judgment subsumed by the constitutional guarantees of fundamental

rights. The prescripts of natural justice - to hear the other side and not to be a judge in one’s own cause, have,

themselves, been subsumed by the constitutional right to fair procedures. The right to be heard incorporates the right to

be put to answer, to be told of the allegation, and to confront the witnesses. History may well be a guide, but only a

guide, to constitutional construction. Rights are to be found within the constitutional framework, some created, others

identified and guaranteed.” (Emphasis added)

63. In this present case the Tribunal unambiguously found that certain persons had done things which, in an identical form of words,

the legislature has decreed should constitute a criminal offence. These things were not even amongst the “definite matters of urgent

public importance” which the Tribunal was mandated to inquire into and report upon. Furthermore, on the basis of that finding, or

partly on that basis, the Tribunal has deprived the Murphy interests of their costs amounting (it is quite safe to assert) to a truly

enormous amount of money by reason of the almost incredibly protracted nature of the Tribunal’s hearings, and the vast scope of the

discovery required of them.

64. These facts illustrate, more clearly than any other of the very numerous cases to do with Tribunals of Inquiry which have come

before the Court, the scope for conflict between a tribunal and constitutional rights especially in relation to the trial of offences. The

learned editors of Kelly on The Irish Constitution 4th Ed., (Dublin 2003) at p. 1040 state that:

“Article 38.1 is plainly referable to the trial of offences, but the novel question of whether the Oireachtas is free to

establish parallel procedures providing for the investigation of alleged criminal (or potentially criminal) conduct was

examined by the Supreme Court in Goodman International v. Hamilton, (No 1) [cited above].” (Emphasis added)

65. The judgments in Goodman turn fundamentally on the distinction between the nature of a trial as opposed to that of an inquiry

for the purpose merely of reporting an opinion on facts. At a trial, according to Finlay C.J. at p.588 “ the sole purpose and object of

the verdict, be it one of acquittal or of conviction, is to form the basis for either a discharge of the accused from the jeopardy in

which he stood, in the case of an acquittal, or for his punishment for the crime which he has committed, in the case of a conviction.”

66. By contrast, according to the same learned judge, “[t]he Tribunal has no jurisdiction or authority of any description to impose a

penalty or punishment on any person. Its finding can form no basis for either the conviction or acquittal of the party concerned on a

criminal charge nor can it form any basis for the punishment by any other authority of that person. It is a simple fact-finding-

operation, reporting to the Legislature.” (Emphasis added)

67. At p. 590, Finlay C.J. describes the activity of the tribunal as “to make a finding of fact, in effect, in vacuo and to report it to the

Legislature.”

68. The High Court judgment in Goodman was that of Costello J. (as he then was). He based himself to some degree on the judgment

of Finlay C.J. in Kennedy v. Herne [1988] IR 481 at p.488 to 489 as follows:

“A characteristic of the exercise of a judicial function is that by its determination within jurisdiction the tribunal, court or

individual concerned imposes liabilities or affects rights”.

69. He goes on to consider the Tribunal in question in the Goodman litigation, the Beef Tribunal, and said at p.556 to 557 that “in

inquiring into these allegations and in reporting its opinion on them the Tribunal is not imposing any liabilities or affecting any rights…

It may come to the conclusion that some or all the allegations of wrongdoing are true, but this opinion is devoid of legal

consequences.” (Emphasis added)

70. Costello J. then went on to discuss a number of New Zealand, Australian and American cases to which he had been referred and

in particular the well known Australian case of Victoria v. Australian Building Construction Employees Federation (1982) 152 C.L.R. 25.

He quoted in particular from the judgment of Brennan J. at pp. 152 to 153 which contains a phrase which has subsequently been used

throughout the common law world in relation to the findings of Tribunals or Commissions of Inquiry. The quotation is to be found at

p.562 of the judgment of Costello J. in Goodman:

“What the common law and the early statutes forbade to the executive was the assumption of any judicial function or

interference with the judicial process. A commission of mere inquiry and report - affecting no rights privileges or

immunities, imposing no liabilities, exposing to no legal disadvantage - cannot be (unless the circumstances are

exceptional) either an authority for the assumption of judicial function or an interference with the judicial process. Even if

a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile

of legal effect. It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an

inquiry as judicial. The absence of any legal effect in the findings of a royal commissioner appointed merely to enquire

and report denies any suggestion that such a commissioner is exercising judicial power.”

(Emphasis added)

71. The phrase referred to above is “sterile of legal effect” or “legally sterile” as it is sometime rendered, used as a description of the

quality of a tribunal which prevents it from being an unconstitutional usurpation of judicial functions and powers.

72. The significance of the Goodman decision for this branch of the law can hardly be overstated. Nor, if I may say so, could the

case against the compatibility of the system of Tribunals of Inquiry, within our constitutional dispensation, be more convincingly put

than in the submission of Mr. Seamus McKenna S.C. and Donal O’Donnell for Laurence Goodman, set out at pp. 572 to 573. Mr.

McKenna said:

“The issue of the right of the Tribunal to investigate the truth or otherwise of allegations of criminal conduct or illegal

activities, or fraud, is the core and fundamental constitutional question in this case.”

73. He went on to contend, in a passage of remarkable force, that if the powers of the Tribunal of Inquiry were upheld that it would,

therefore, be open to the members of the legislature or some of them to constitute themselves as a parallel court to investigate

allegations, with the sole reservation that

“[w]e cannot punish you by way of imprisonment but we may order you to pay what might in some circumstances be an

enormous penalty by way of costs in relation to one or other of the parties before us.”

74. It was this forceful proposition, it seems to me, that led to the dictum of McCarthy J. on costs, discussed below. This fact, also,

seems strongly to indicate that the dictum of McCarthy J. is not, as the Respondents at one point submitted, merely obiter.

75. Nevertheless, the courts upheld the constitutionality of the Tribunal of Inquiry known as the Beef Tribunal on the basis that

what it did was not the trial of an offence. It is worth recapitulating some of the characteristics attributed by the judgments in this

Court and the High Court to the tribunal findings, which prevented their being the trial of an offence. The phrases now to be

considered were, accordingly, the Court’s expression of the aspects of the legal nature of a Tribunal of Inquiry which prevents it

offending the Constitution.

76. In the words of Costello J., or in the words of the judicial authorities cited with approval by him, the Tribunal of Inquiry is “not

imposing any liabilities or affecting any rights” (at p.557); its conclusions have merely the status of opinion and “this opinion is devoid

of legal consequences” (at p.557), its findings are “sterile of legal effect” (562 and its purpose is “merely” to inquire and report (at

p.562). A Tribunal of Inquiry is “a simple fact-finding-operation” according to Finlay C.J. (at p.588). The Tribunal has no power to

inflict a penalty and its determinations cannot “form any basis for the punishment by any other authority of that person” at p.588. Its

function is to “make a finding of fact, in effect, in vacuo, and to report it to the Legislature.” (at p.590)

77. This judgment will shortly address the question of whether the present Tribunal of Inquiry, in acting as it has done, and as is

summarised earlier in this judgment, exhibits those characteristics of a Tribunal of Inquiry which alone protect it from constitutional

vulnerability. First, however, it is appropriate to consider some further aspects of Goodman, and certain dicta from the judgment of

McCarthy J. on the specific topic of costs.

78. Goodman is a decision of this Court, a case of high authority which we have not been asked to disapprove and which I propose to

follow. It is true that Mr. Michael Collins S.C. who appeared for the Tribunal on this appeal said he would ask the Court “if necessary”

to depart from Goodman. I take it however, that this is a reference solely to the dictum of McCarthy J. to be discussed below and

not to the principal thrust of Goodman, which has been for almost twenty years every Tribunal of Inquiry’s title to constitutionality.

No argument was directed against any finding in Goodman except the dictum of McCarthy J. Nevertheless, it must be acknowledged

that, in distinguishing the findings of a tribunal from the verdict of a court, the judges were obliged to make some rather subtle

distinctions which one may take leave to doubt would count for much in the minds of ordinary people. I have to some extent explored

this topic in my judgment in Maguire v. Ardagh [2002] 1 I.R. 385 at 669.

79. Hederman J., in his judgment in Goodman cited extensively from the dissenting judgment of Murphy J. in the Australian case cited

above. The citation can be found at pp. 599 to 600 of the judgment and I propose to quote simply the first three sentences:

“The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a

person guilty of ordinary crimes, is in itself an undermining of the separation of powers. It is a fine point to answer

that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine

points such as this that human freedom is whittled away.”

80. I believe that points such as these and the others made by Murphy J. and quoted by Hederman J. must always be borne in mind in

this area of the law. I would also observe that the considerations there expressed in my opinion apply whether (in the memorable

phrase of Mr. McKenna S.C. at p. 573) the “Tribunal of inquiry [is] presided over by a Solomon or a simpleton.” The confining of a

Tribunal of Inquiry within its proper bounds in no way reflects on the individuals who compose it.

Costs Provisions.

81. Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 provided as follows, at the time when Goodman was

decided:

6(1) Where a tribunal, or if the tribunal consists of more than one member, the chairman of the tribunal, is of

opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons

rendering it equitable to do, the tribunal or the chairman, as the case may be, may by order direct that the whole

or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master

of the High Court, shall be paid to the person by any other person named in the order.

82. In his judgment in Goodman, McCarthy J. briefly expressed his agreement that (at p.604) that “[t]here is no usurpation of the role

of the judiciary in the administration of justice” for the reasons given by the other judges and summarised above. He devoted the bulk

of his judgment to the question of fair procedures before a tribunal, saying at p.605:

“No challenge was made to the constitutional validity of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979,

but it must be construed as subject to the constitutional framework and, in particular, involving fair procedures.”

83. The learned judge then went on to expound the requirements of fair procedures under a number of headings of which the third

related to s.6 of the 1979 Act, the source of the jurisdiction to award costs. McCarthy J. said at p. 605:

“The liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of the inquiry.

When the inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be represented at the

inquiry should have their costs paid out of public funds. The whole or part of those costs may be disallowed by the

Tribunal because of the conduct of or on behalf of that party at, during or in connection with the inquiry. The

expression “the findings of the tribunal” should be read as the findings as to the conduct of the parties at the

tribunal. In all other cases the allowance of costs at public expense lies within the discretion of the Tribunal or,

where appropriate, its chairman.”

84. The Tribunal in question here is, of course, not concerned to inquire into a single disaster (as for example the Whiddy or Stardust

Tribunals were). It seems to me that the principle behind the passage just cited in the judgment of McCarthy J. is this: a Tribunal of

Inquiry will be convened only when some thing or things have happened which have given rise to grave public disquiet. Pursuant to

the 1921 Act such a tribunal may be convened only in relation to “a definite matter of urgent public importance”, and only where it is

“expedient” in the public interest that a tribunal be established. Thus, a tribunal to which the 1921 Act applies may be established

only in the public interest and in acute circumstances which, for the satisfaction of the public, require elucidation. Historically,

tribunals have often been established in the aftermath of a single disaster occurring due to negligence, act of God or in unknown

circumstances. But, equally, many tribunals have been established in relation to matters which derived their significance from

commercial, financial or political concerns, and which also require elucidation in the public interest. The former class of inquiry may

easily involve persons who are completely innocent of any involvement in the cause of the disaster but whose evidence is still

required to be taken. See the report of the Whiddy Tribunal. It is reasonable that, since their presence and their evidence is required

in the public interest, the public purse should defray the costs of and incidental to such evidence. In the latter sort of inquiry the

people whose attendance and evidence is required are more likely to have some prior involvement, innocent or otherwise, in the chain

of events leading to the establishment of the tribunal. Nevertheless the supreme importance, in the public interest, of having all their

evidence available means that they cannot be penalised in costs for their past behaviour relating to the substantive subject matter of

the tribunal’s inquiries.

85. The significance of the circumstances in which costs may be awarded is of course very great in practice. Due to the very

prolonged nature of the Tribunal sittings, it has been openly speculated that the total costs of the Tribunal and all other parties will

run into tens of millions of euros. To be made to pay even a small fraction of such costs is plainly a very significant matter, perhaps

financially ruinous for an individual or a company. It is very difficult to regard a conclusion of a tribunal which may determine, or

influence, so significant a liability as being one which “does not impose liabilities or affect rights” or one which merely has the status

of opinion and “this opinion is devoid of legal consequences” or “sterile of legal effect” or as a finding made “in effect, in vacuo”. Still

less is it “devoid of legal consequences”.

86. Yet it was only by so characterising the conclusions of a Tribunal that its constitutionality was preserved in Goodman. It appears

to me that McCarthy J. was conscious of the very acute difficulty for the analysis presented in the judgments of Costello J. and

Finlay C.J. (and with which he agreed) of the costs jurisdiction (which emphatically imposes liabilities) that he wrote as he did in the

passage cited above. I may say that the difficulty is not rendered less acute by the terms of the amending Tribunals of Inquiry

(Evidence) (Amendment) Act 1997, nor of the Terms of Reference of this Tribunal, which will be discussed below.

87. The Tribunal, in its submissions, has fully recognised the great significance of the dictum of McCarthy J. cited above. It has

sought to address it in three ways: firstly that it is simply the judgment of a single judge; secondly that it is any event obiter and

thirdly that it has been overtaken by subsequent legislation, in particular the 1997 Act.

88. In Goodman there were three judgments in the Supreme Court, those of Chief Justice Finlay and Hederman and McCarthy JJ. The

other judges, O’Flaherty and Egan JJ expressly agreed with each of the judgments delivered. Moreover, Finlay C.J. expressly agreed

with Mr. Justice McCarthy’s dicta on the subject of costs. At p.591 to 592of the judgment the former Chief Justice stated:

“With regard to the questions of the common law precedents concerning commissions of inquiries in other common

law countries, and with regard to other questions raised concerning the construction of ss. 4, 5, and 6 of the Act of

1979, I have had the opportunity of reading the judgment which is about to be delivered by McCarthy J., and I

agree with it.”

89. It does not, therefore, seem possible plausibly to argue that the judgment of McCarthy J. expresses simply his own view: it

appears to have the endorsement quite expressly of at least three of his colleagues.

90. As I have noted above, McCarthy J. agreed that “there is no usurpation of the role of the judiciary in the administration of

justice” in the establishment of a tribunal such as that then under consideration. He did this for the reasons given by his colleagues

and summarised earlier in this judgment. But this was based on his presumption that the requirements of fair procedures would be

observed by any tribunal sitting pursuant to the 1979 Act which statute “… must be construed as subject to the constitutional

framework and, in particular, involving fair procedures”.

91. I would remark with respect that this latter observation is manifestly correct. This fact is inconsistent with the observation of

McCarthy J. being merely obiter. Indeed, on the contrary, the passage in question seems to me to turn upon the construction of the

arguably general phrase “the findings of the Tribunal” in a particular, limited, way so as to avoid the constitutional vulnerability which

would follow if those words in the 1979 Act were given an entirely literal meaning. This, of course, involves the assumption that these

words are capable of a different and narrower meaning, which, like McCarthy J., I believe they are.

92. The question of the effect of subsequent legislation will be considered below.

The decision on Costs.

93. Against that background, it is now necessary to consider the basis on which the Murphy interests were refused their costs.

94. It will be recalled, and is in any event set out above, that the then Chairman of the Tribunal held that:

“Taken as a whole the adverse findings of obstructing obstructing and hindering the Tribunal made against

the Applicants’ were so serious, so extensive and so far reaching as to clearly lead any reasonable person

considering them to the conclusion that the individuals concerned, particularly those I have named in the preceding

paragraph, were intent from the outset in ensuring that the Tribunal would not find the truth...

In spite of the serious findings of corruption on the part of some of the Applicants’ I would have considered

awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am

firmly of the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any

party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under

inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse

findings on substantive issues such as corruption.

In all the circumstances therefore I do not believe it would be appropriate to award any costs to the Applicants and

I therefore refuse their application.” (Emphasis added)

95. From this ruling the following propositions seems to me to follow:

(a) That, in the Tribunal’s mind, the appellants had disentitled themselves to some portion of their costs by virtue of

the “serious findings of corruption” i.e. findings on the subject matter of the inquiry.

(b) But they might still have recovered “a portion of their costs” had they, in the Tribunal’s view, co-operated with

it.

(c) These “portions” are not defined in terms of fractions or percentages but it is said that a person who co-

operates fully and truthfully with a tribunal can reasonably expect to recover at least “a significant portion of his

or her costs”, notwithstanding adverse substantive findings. (Emphasis added)

(d) Therefore, both the substantive findings and the “obstructing and hindering” finding are implicated in the

tribunal’s decision refusing all costs.

(e) It is quite clear from the full text of costs ruling, which is referred to earlier in this judgment, that the

substantive findings, like the finding of obstruction and hindrance, contributed to the decision to refuse costs to the

appellants. This appears quite contrary to the dictum of McCarthy J., cited above from Goodman.

96. In making submissions on the costs ruling, counsel for the Tribunal on the hearing of this appeal had some difficulty in construing

it. However, he confirmed that the phrase, in the Tribunal’s list of the ways in which the Tribunal had allegedly been hindered and

obstructed by Mr. Murphy, “failing to give a truthful account” means perjury. He also confirmed that those findings reflect the fact

that “every conflict of fact had been resolved against the Applicants”. (Emphasis added) But he first agreed that both the findings of

corruption and the findings of non-cooperation “are implicated as the basis of the costs order”. However, he almost immediately

amended this saying “no, the finding of corruption is not at all involved.” I do not understand the logic of this, or how it relates to the

express words of the ruling, which clearly states, in its penultimate paragraph, that the “serious findings of corruption” have reduced

the costs entitlements even of a co-operating party to a “portion” or a “significant portion” of his total costs.

97. In the ruling, the Tribunal considered both the substantive findings as to the subject matter of the Tribunal’s inquiries and the

Tribunal’s conclusions as to the degree of co-operation it has received from a party are relevant to the award of costs. But they are

relevant to different (though undefined) portions of the costs. An undefined but “significant” portion of the costs is referable to

conduct before the Tribunal alone, without regard to any adverse substantive findings. In the circumstances of this case the

appellants failed to meet the Tribunal’s criteria either in relation to the substantive subject of its inquiries or in relation to their

conduct before the Tribunal.

98. The extent to which this is consistent with the statutory power set out at s.6 of the 1979 Act as amended and the authorities

cited above, specifically the judgment of McCarthy J. cited above, will soon fall to be considered.

Undisclosed material.

99. But there is another and separate aspect of the Tribunal’s proceeding about which the appellants complain. They say that they

have discovered very late in the day, in the course of discovery made by the Tribunal a very short time before the High Court hearing

of this case, that the Tribunal had in its possession for a number of years, certain tape recorded and transcribed material. This

appears to show their accuser, Mr. Gogarty, making allegations of impropriety, some extremely grave, against other, unconnected,

persons. They say that this material was manifestly relevant to the question of Mr. Gogarty’s credibility and that it was quite wrongly

not disclosed to them. This had the effect of concealing it from them. Instead, they were given a “redacted” version of the material

in question, from which the Sole Member had excised all references to the allegations made by, or attributed to, Mr. Gogarty against

these third parties. They say that the Tribunal, precisely as was done in O’Callaghan v. Mahon [2006] 2 IR 32, wrongfully concealed

this material from them.

Nature of the materials.

100. As mentioned above the material in question was eventually produced only long after the appellants had issued these judicial

review proceedings and the plenary proceedings with which they were consolidated. The Court was told without contradiction that

the material was produced not more than a fortnight before the hearing of the High Court proceedings. The Murphy interests had no

prior access to them and were refused such access when they asked for all redacted material.

101. The discovered material showed that Mr. Gogarty had apparently made statements to the Tribunal or to third parties alleging

serious improprieties against at least four other persons whom it is fair to describe as being well known persons of good reputation.

One of these persons has since died. The first and most immediately relevant of the allegations was that Mr. Gogarty claimed to

know, from a named source, that money was paid in cash, not only to Mr. Burke, but to another politician, in connection with a

named site, and that the two politicians had co-operated to bring about a desired result. I do not propose to mention the name of the

other politician, or the site, or the timing of this event but its relevance to the matters at issue before the Tribunal is obvious. Either

Mr. Gogarty was telling the truth when he said that the named person gave him this information, or he was not. Either the information

itself was true, or it was not. If either of these matters was untrue, that would involve the consequence that Mr. Gogarty had made

an admittedly or demonstrably false allegation against another prominent politician. This in turn would have been gravely destructive

of his credibility and would raise questions as to his motivation.

102. None of the other persons against whom Mr. Gogary is portrayed as making or relating allegations are as prominent as the

second politician whose alleged activities have just been described. But it is fair to say, at the same time, that they are all well

known persons in professional commercial and political circles. It would be difficult to give a flavour of what was said about them

without tending to identify them: in any event, the allegation about the second politician, because it also involves a person already

much mentioned before the Tribunal (Mr. Burke) and because of its general similarity to the “Briarsgate” allegation, where findings

adverse to the Appellants were made, is the most glaring omission.

103. On the hearing of this appeal the Tribunal’s counsel dealt with this matter very briefly indeed, saying only that the appellant

should have had the material but they had not been given it. I interpret this as acquiescence in the factual aspect of the appellants’

complaints but putting in issue the legal significance of them. He said the Tribunal had acted wrongly, but in good faith and for the

avoidance of collateral issues.

104. At this point it is necessary to repeat, as has already been said several times in this judgment, that the appellants’ claims for

relief relate wholly to the findings of obstruction and hindrance and do not extend to the substantive findings of the Tribunal on the

issues into which it was set up to inquire.

105. This issue of concealed material comes before the Courts very late indeed. The appellants cannot be blamed for this since they

received the material only, it would appear, a matter of days before the High Court hearing. One of the consequences of this delay is

that, unfortunately, both Mr. Gogarty and at least one of the persons against whom he appears to have made allegations have died

since the eventual disclosure. Mr. Gogarty’s death means that the material in question can never now be deployed in cross-

examination of him and he himself is, of course, unable to defend his position.

106. The rights of third parties make it difficult to give any satisfactory account in this judgment of the material in question. However

it is possible to say that, at least on one tenable view of it, it is material of an explosive nature, given the position and significance of

Mr. Gogarty to the Tribunal’s findings. But in dealing with the material here it is necessary for the Court to have regard to the good

name of the persons against whom he is said to have made allegations, who were and are without exception prominent and reputable

people. It is important to say that, having read the papers presented for the purpose of this appeal, I have absolutely no reason to

believe that the allegations said to have been made against the third parties have any truth whatever to them. Indeed, having regard

to their constitutional right to their good name and the obligations which that imposes on the State, including the courts, I intend to

presume that the allegations made against them are false. But that, as will be seen, merely emphasises the importance of the material

from the appellants’ point of view.

Position of Mr. Gogarty

107. Mr. Gogarty was the principal, and on many matters the only, witness against the Murphy interests. For example, the allegations

against Mr. Joseph Murphy Senior and Mr. Joseph Murphy Junior in relation to the alleged payment to Mr. Burke, depend wholly on his

evidence. All of the other relevant witnesses contradicted him. There was no question of corroboration or other external support for

the account he gave, insofar as it concerns the Murphy interests.

108. Accordingly, the appellant’s have been gravely damaged in their characters and reputation and face an enormous financial

liability, wholly on the basis of an issue of credibility between Mr. Gogarty and themselves. If the allegations which Mr. Gogarty was

making were to be tested at all, their defence to them had to raise the question of Mr. Gogarty’s credibility.

109. Every lawyer with even a little experience is aware of the exigencies of a hearing of that sort. The law and the procedures

adopted must give ample scope to a person accused to defend himself according to the needs of the individual case. In Re Haughey

[1971] IR 217 at 264 Chief Justice Ó Dálaigh said:

“[I]n proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his

person or property or any of his personal rights jeopardised, the proceedings may be correctly classed as

proceedings which may affect his rights, and in compliance with the Constitution the State, either by its

enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned

from vindicating these rights.”

110. On that basis the Court held that a person in the position mentioned in the preceding paragraph is in all cases entitled to the

following “minimum protection”:

“(a) that he should be furnished with a copy of the evidence which reflected on his good name;

(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;

(c) that he should be allowed to give rebutting evidence and

(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”

111. The Haughey case was decided in the context of an inquiry by the Oireachtas Committee on Public Accounts. But Ó Dálaigh C.J.

continued, at p.264, to say that without the rights mentioned above:

“[No] accused - I speak within the context of the terms of the inquiry - could hope to make any adequate defence

of his good name. To deny such rights is, an ancestral adage, a classic case of clocha ceangailte agus madraí

scoilte. Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The

Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40,s.3

are not political shibboleths but provide a positive protection for the citizen and his good name.”

112. It will be apparent from the foregoing that one of the principal recourses of a citizen who is attacked, undermined in his

character and reputation and who faces the possibility of an enormous liability on the basis (here) of the uncorroborated evidence of

a single witness, is to cross-examine such person or have him cross-examined on the accused person’s behalf. The great importance

of cross-examination has already been the subject of discussion by me in Maguire v. Ardagh [2002] 1 IR 385, at p.704. I do not want

to lengthen this judgment by recapitulating this material, but I wish to be taken as restating as what is said there at pp 704 to 707,

particularly the observation (at p. 707) that cross-examination “has been the means of the vindication of innocent people”.

113. In the course of this passage I also said at p. 705:

“Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a

particular case is merely the foundation.”

114. Here, the Tribunal does not dispute that the appellants were entitled, before being found guilty of obstruction or hindrance, to

fair procedures and specifically to the rights enunciated in Haughey. These rights include, prominently, a right to cross-examination.

Oral contradiction in a public forum is the culmination of the work of the cross-examiner but is by no means the whole of it. All

effective cross-examinations (especially in matters as wide ranging, and as old, as those on the basis of which a finding of

obstruction and hindrance were made here), are the result of intensive preparation. Such preparation involves an extremely thorough

consideration of what precisely the witness is saying, what the scope to contradict him from other sources is, and whether the

witness’s own credibility is vulnerable to attack. It would be positively negligent of any professional cross-examiner to fail to consider

what he or she might hope to achieve under each of these headings.

Procedures of the Tribunal.

115. There was a time when the whole, or substantially the whole, of the work of a Tribunal of Inquiry would take place in public.

Though this may have had some disadvantages, and may have prolonged the sittings (though to nothing like the extent which has

since become common) it had the advantage that all parties who had been granted representation knew precisely what material the

tribunal and its lawyers had. But this custom has changed, to the point where certain modern Tribunals of Inquiry can go for periods

of months or even years without holding a public sitting as they are conducting certain inquiries in private. Though this may have

some advantages, it has the drawback that (apart from leaks) only the tribunal knows precisely what material has been gathered. In

the case cited several times above, O’Callaghan v. Mahon, a complaint was made that though the tribunal had a good deal of material

highly relevant to the credibility of a witness making extremely damaging allegations against Mr. O’Callaghan, this had not been

disclosed to him or to solicitors or counsel acting for him. In that case, the nub of the complaint made when the material eventually

came to Mr. O’Callaghan’s knowledge was that his accuser had apparently given different accounts of important and relevant events

at different times. He also complained that there had been a consistent practice of redacting, i.e. excising, exclusively material

damaging to his accuser’s credibility. This is a feature of the present case as well.

116. Mr. O’Callaghan issued proceedings by way of judicial review claiming that he was entitled to see all statements that his accuser

had given to the tribunal and sought a declaration that the refusal to disclose such statements amounted to a breach of fair

procedures. The tribunal resisted this and argued that the Court should not interfere with what they did because they were “masters

of their own procedure”. Mr. O’Callaghan was successful both in the High Court and, on the tribunal’s appeal, in this Court. It was

emphasised in particular that, in the context of a tribunal which conducts extensive inquiries in private, the right to cross-examine is

not vindicated simply by giving counsel for the party attacked an opportunity to stand up and ask the witness some questions: on the

contrary, he or she must be given any material within the knowledge of the tribunal which has the reasonable possibility of being

useful in cross-examination, simply because the material exists and is not known to the parties accused since the tribunal has kept it

confidential. In the words of Geoghegan J. at p. 81:

“ it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a

worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the

tribunal against the applicant and of which he had no prior notice, be duly produced.”

117. This case is not precisely the same as the O’Callaghan case. Because of the need to consider the reputation of the people

involved, presumptively innocent people of good repute, only a very restricted account of the materials now to hand here can be

given. But there is no doubt, and it has not been denied, that solicitors and counsel for the Murphy interests sought copies of all

statements by Mr. Gogarty made to the Tribunal, or to third parties but which were in the possession of the Tribunal. They were

refused this. They were told expressly on several occasions in writing that the then Sole Member (and not the present chairman of

the Tribunal) had personally decided that the materials which had been redacted were “irrelevant”.

118. An examination of the correspondence which the Tribunal had with the appellants’ solicitors shows that “any deletions in the

transcripts have been certified by the Sole Member as wholly irrelevant.” The Sole Member himself remarked, in the transcript of the

8th July, 1999:

“That’s correct. I listened to the tapes. I had a transcript of the entirety of the verbal or the oral statements or

whatever it is, evidence on the tapes. I listened to them, sorry I had a transcript, I listened to the actual tape, I

had a red pencil and I blocked out pieces which I thought were of absolutely no relevance to [named person] or this

Tribunal.

It would, I suppose, be pejorative to say that the tapes in part followed a certain gentleman’s capacity.

I cleaned, not the tapes, I cleaned the script, and I believe that I have done a reasonably fair job, I certainly didn’t

cull anything that I thought could be of interest to any party in the Tribunal. Now that’s what you have got

because there were other people mentioned, there was this, that and the other mentioned and…”.

119. Counsel for the Murphy interests, Mr. Cush, then suggested that the redacted material be disclosed simply to one member of the

appellants’ legal team so that he could form a view on its utility and use it where appropriate, but this request was denied. It must

have been perfectly clear that this decision stymied cross-examination.

120. I have to say that I simply do not understand the basis on which (to take the simplest example) the allegation made about the

other politician was redacted. If the ordinary discovery rules applied, as expounded in O’Callaghan v. Mahon, then anything capable of

supporting the appellants case or undermining that of their accuser should have been produced. The question of the allegation

against the other politician was manifestly relevant as to the credibility both of Mr. Gogarty as to his saying it, as to whether it had in

fact come from the source he alleged, and as to whether or not it was true. Moreover, it would appear to be an allegation itself

actually within the Tribunal’s remit: it is not obvious why it was not disclosed on that basis. Moreover, it was actually linked to Mr.

Burke who was of course the subject of intensive investigations.

121. On the hearing of this appeal, counsel for the Tribunal (who had not been involved as one of the counsel appearing for the

Tribunal at its own sittings) said that he did not stand over the redaction and non-production of the material in question. He said that

“Bearing in mind the decision of this Court in O’Callaghan, I am conceding that the document should have been given to the

Appellants.’’ By way of explanation he said that Judge Mahon (presumably an error for Mr. Justice Flood) thought that the documents

in question were not relevant but in any event he said that the documents were irrelevant to the judicial review proceedings, even

though it was in these proceedings that the documents were eventually disclosed. He then referred to the Tribunal’s “need to limit

collateral credibility issues: they redacted the documents.” It is not entirely clear to me how the last matters fit in with the

concession recorded above. And the allegation about the second politician, at least, is not a “collateral” issue on any view. It was

concealed without justification.

122. It is noteworthy that before the Tribunal, in July, 1999, one of the Tribunal counsel (Mr. Gallagher S.C.) appeared to rely on

confidentiality as a reason for non-disclosure. He said:

“[A named person who had apparently given tapes and transcripts of Mr. Gogarty to the Tribunal] agreed to furnish

the material to the Tribunal for the assistance of the Tribunal on the very strict understanding that it would only

have been available to the Tribunal and only relevant matters material and relevant to the Tribunal would be

circulated.”

123. In other words, the named person, who was a journalist, gave tapes and transcripts of his conversation to Mr. Gogarty and

notes of them to the Tribunal but required a certain confidentiality which, in the Tribunal Counsels view, prevented their disclosure to

the parties Mr. Gogarty was accusing. It is noteworthy that this defence or explanation of non-disclosure was not offered on the

hearing of the appeal and appears wholly unstateable, particularly if reference is made to the judgment of Geoghegan J. in O’Callaghan

v. Mahon, where a plea of confidentiality was advanced as a basis for non-disclosure. A witness cannot dictate how a court or

tribunal will treat his evidence, or any items he produces. The interests of justice are paramount. It is also disturbing that the refusal

of Mr. Cush’s request for the undisclosed material was made after the High Court decision in O’Callaghan v. Mahon. Accordingly, it

could only be justified on the basis that the Tribunal might have succeeded in its appeal to this Court. But when its appeal was

unsuccessful, the decision was not reviewed. I find this very disturbing.

Statutory changes.

124. The present wording of s.6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, after its amendment by s.3 of the

identically titled 1997Act is as follows:

"(1) Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of

opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the

resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-

operate with or provide assistance to, or knowingly giving false or misleading information to the tribunal), there are

sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either

of the tribunal's or the chairperson's own motion, as the case may be, or on application by any person appearing

before the tribunal, order that the whole or part of the costs—

(a) of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of

the High Court, shall be paid to the person by any other person named in the order.

(b) incurred by the Tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any

other person named in the order”.

125. The resolution establishing the present Tribunal, as passed in Dáil Éireann on the 7th October, 1997 contains the following

paragraph in relation to costs:

(C) (a) -

(b) all costs incurred by reason of the failure of individuals to cooperate fully and expeditiously with the Inquiry

should, so far as is consistent with the interests of justice, be borne by those individuals.”

Vires.

126. It will be observed that neither the statute, nor the resolution of Dáil Éireann, request or require the Tribunal to investigate

questions of “obstruction and hindrance”. This is critical. It is simply not part of the Tribunal’s remit. Insofar as the question of costs

are concerned, it would have been quite possible to make a finding, if the Tribunal considered the evidence supported it, that there

had been a lack of cooperation on the part of any named parties. This is what was done in the case of other parties. Instead, the

Tribunal appears, on the basis of the evidence set out above, quite consciously and deliberately to have used the words “obstruct

and hinder” in the full knowledge that this was the identical phrase used to constitute one of the criminal offences capable of being

committed in relation to the Tribunal.

127. Equally, the wording of s.6 of the 1979 Act, as inserted by the 1997Act, speaks (in the context of costs), of a “failing to co-

operate”. It is not obvious why the Tribunal felt impelled to go further than this when their only concern with the conduct of the

parties (as opposed to their actions in the substantive matter under inquiry) was in relation to costs. This Tribunal’s course of action

is also at variance with that of the McCracken Tribunal, which also sent the papers in relation to how a particular person had

interacted with the tribunal to the Director of Public Prosecutions. That tribunal, in taking the step, made no finding in relation to

obstruction or hindrance but rather left the Director of Public Prosecutions to make up his mind whether or not to prosecute without

any unnecessary Tribunal finding in relation to a criminal offence.

128. I do not believe that the expression by Dáil Éireann of the desire, in relation to costs, expressed at para (C), sub-paragraph (b)

of the Resolution of the 7th October, 1997, in any way authorises or entitles the tribunal to make findings of the commission of a

criminal offence other than findings which relate to the “definite matters of urgent public importance” set out at para. (A) of the

Resolution of the 7th October, 1997. Insofar as it might be argued that the statutory provisions quoted above, from the Acts of 1979

and 1997 in relation to costs or sub-paragraph (b) of paragraph (C) of the Resolution imply such a power, I would decline to accept

this. The statutes and Resolutions are expressed quite otherwise insofar as “obstruction and hindrance” are concerned and do not

require a finding that these things have in fact occurred for the exercise of any legitimate discretion the Tribunal has in relation to

costs.

129. For the reasons set out earlier in this judgment, I believe that the dictum of McCarthy J. cited above from the case of Goodman

v. Hamilton continues to represent the law. For the reasons set out above I am wholly unimpressed by the tripartite challenge to it:

on the contrary, I believe that McCarthy J. was conscious of a possible weakness in this Court’s and the High Court’s approach to the

constitutionality of the tribunal, in the form of an argument that the costs jurisdiction prevented its substantive findings being “devoid

of legal effect”. He found as he did in a necessary attempt to attribute to a tribunal under the 1921 Act as amended procedures

which were themselves both fair and constitutional. If his judgment were to be attacked, it might more easily be done, in my opinion,

on the basis that it is scarcely possible to regard the present costs jurisdiction (created in part many years after the judgment of

McCarthy J.) as meaning that the tribunal’s findings are “devoid of legal effect.”

130. On the basis of Goodman v. Hamilton, the order refusing costs in this case must fall since, apart from anything else, it is plainly

based in part on the substantive findings of the tribunal. It is not possible to sever this order because the tribunal itself has not made

it clear to what portion of the costs the findings on the substantive issues refer.

131. I am also of the view that the appellants’ complaints to the effect that they were not put on notice that the Tribunal was

considering making the finding of obstruction and hindrance, and that this was not communicated to them even when their solicitors

specifically raised in correspondence the topic of the matters required to be addressed in the costs phase are borne out. Indeed, this

is not disputed. Such notice was manifestly necessary, especially in light of the significance the tribunal placed on this finding in

refusing costs.

132. I agree with the judgment of Fennelly J. in relation to the defence based on an alleged delay on the part of the applicants and I

would reject the tribunal’s contentions in this regard, for the reasons which he gives.

133. I also consider that the appellants’ complaint about non-disclosure of relevant material to them has been substantiated. Despite

Mr. Collins’s submission to the contrary. I believe that this complaint is relevant on the judicial review. This is by reason of the fact

that the particularised findings of obstruction and hindrance arise directly and without more from the findings on the substantive

issue, and the concealed material relates directly to these latter findings, because it relates to the credibility of Mr. Gogarty.

134. However, I do not believe that it would be proper or feasible for the Court to interfere with the decision on the substantive issue

simply because the appellants, for reasons which seem to them sufficient, have not asked the Court to do so. But the concealment

clearly, and quite expressly, fed into the “obstruction and hindrance” findings, which was a major cause of the Order refusing costs.

135. I have read with great interest the quotations in the judgment of Fennelly J. cited above from a leading English authority on

administrative law in relation to Tribunals of Inquiry. As stated above, I agree with them. This Tribunal manifests two features of a

tribunal of inquiry which are, in my opinion, fraught with great risks for justice. The first is that the investigative function - that

carried out by the gardaí in relation to criminal matters - and the adjudicative function, or the function of making findings - that

carried out by the Courts in criminal matters - are, in the case of a tribunal, conferred on a single body or even (as here before the

retirement of the former Sole Member) on a single person.

136. The second risk is a corollary of the latter fact. An investigator in a case where there is only one witness to support allegations

made, whose evidence is subjectively accepted by the investigator, may become so invested in that one witness as to become blind

or insensitive to things which raise doubt as to his credibility. I believe that this is what happened in the case of O’Callaghan v.

Mahon, cited above, and that it may well have happened here. It is a common phenomenon: in the well known miscarriage of justice

case referred to as that of the “Guilford Four”, the investigating police officers were actually in possession of evidence providing an

alibi for one of the four. But they had become so convinced of their guilt that they decided the alibi could not be reliable and

concealed it. The Guilford Four spent over two decades in jail.

137. The foregoing illustrates the absolute centrality of proper disclosure to any approach informed by fair procedures. Evidence or

material which has even the potential to be useful to the person accused in making his own case or in undermining that of his accuser

must be furnished to him. The use to be made of such material is a matter, not for the investigators, but for the person accused and

his chosen representatives. It is for that reason that an extremely low threshold for disclosure of material should be applied.

138. These concerns are amplified in my mind by a number of others. The Tribunal deliberately and consciously embarked on an

inquiry, and arrived at conclusions to the effect that certain of the appellants had committed acts of obstruction and hindrance which

were (a) outside its remit and (b) unnecessary to any function it had to perform. It did so in a context where it positively emphasised

that these matters were criminal offences. Secondly, it was agreed on the hearing of this appeal that the Tribunal had resolved

every single conflict of fact against the appellants. Thirdly, they withheld material from them which it is now admitted should have

been disclosed and in doing so knew (as any lawyer must have known) they were gravely hampering the appellants in making their

defence.

139. There is sometimes a tendency to be a little suspicious of persons who take legal proceedings against Tribunals of Inquiry on the

basis that this itself is an act of obstruction. I do not agree with this. It is salutary to remember that the concealed materials would

never have come to light in this case had the appellants not taken these proceedings. It is chilling to reflect that a poorer person,

treated in the same fashion by the tribunal, could not have afforded to seek this vindication.

140. I wish to emphasise that the fact of statutes creating certain offences capable of being committed only in relation to a person’s

interaction with a tribunal does not mean that the tribunal in question itself has a jurisdiction to enquire into whether a person has

acted in the manner proscribed by the statute. On the contrary, that is exclusively a matter for the criminal courts, where the

criminal onus of proof would apply and where, unless the offence alleged is a minor one, there will be an entitlement to trial by jury. It

is a fundamental error to think that, because an offence in its terms is created in relation to a tribunal, that the tribunal is therefore

authorised or entitled to make a finding that the offence has been committed, whether or not such finding is regarded as binding on

any other court or tribunal.

141. None of the foregoing implies that there is not an entitlement to establish a tribunal to inquire into whether criminal acts have

been committed, whether by a named person or not. As to whether (as the appellants submitted) such an inquiry would require a

heightened standard of procedural protection for a person suspected of committing what amounts to a criminal offence, that is a

point I would leave over, as being unnecessary to decide here. I prefer to deal with this matter on the narrower but sufficient ground

that this particular tribunal as constituted simply had no power to inquire into the question of “obstruction and hindrance” and, even

for the purpose of costs, could have discharged its function quite adequately by simply considering the question of cooperation. I

cannot agree with the learned trial judge that the distinction between a finding of a failure to cooperate, and a finding of obstruction

and hindrance is a mere matter of degree: that this is not so is evident from the Tribunal’s repeated references, quoted above, to

obstruction and hindrance as being a criminal offence, and as something involving other serious consequences. The Tribunal, for

whatever reason, wanted to make a finding of criminal misconduct against the Murphys and did so. But it had no need, and no power,

to make the specific finding made.

142. Accordingly, on the substantive grounds that the findings on obstruction and hindrance are simply outside the terms of reference

of the Tribunal, and on the several procedural grounds mentioned above, I would quash the decision on the 9th November, 2004

whereby the application of the appellants for their costs was refused.

143. Having done this, I do not propose to proceed to consider the appellants’ claim that s.6 of 1979 Act as it now stands is

unconstitutional. It is unnecessary to do so and it has long been the practice to avoid pronouncing upon such a constitutional

question where there is no need to do so to resolve the issues in a particular case. I would however observe that, in Goodman, so

much cited above, the constitutionality of a Tribunal of Inquiry, at least one which enquires into matters which may reveal or

constitute a criminal offence by some person, was established in a particular and very specific way. This was on the basis that the

findings of a tribunal have merely the status of opinions and that such opinions are “devoid of legal consequences” and do not impose

any liabilities or affect any rights. They are “sterile of legal effect”. In the judgment in which the latter phrase is to be found, that of

Brennan J. in Victoria v. Australian Building Construction Employees Federation, cited above, it is followed by the apparently

explanatory phrase (at pp. 152 to 153) where:

“It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as

judicial… the absence of any legal effect in the findings of the Royal Commissioner appointed merely to inquire and

report denies any suggestion that such a commissioner is exercising judicial power.”

144. Accordingly, in 1992 a challenge to the constitutionality of a Tribunal of Inquiry was rejected on the grounds that its “findings”

were merely opinions, devoid of legal effect. They were merely opinions, given “in vacuo”.

145. There have been changes since then, notably in the form of the statute of the 1979 Act as amended. This appears to elevate

the “findings” of a tribunal into a matter to be taken into account on the question of costs - whether a party can receive his own

costs or be made to bear the costs of others. Whether a finding of this sort is “devoid of legal effect” is a matter which does not

arise here, because of my decision that the impugned costs decision falls to be quashed on other less far reaching grounds, but will

undoubtedly arise at no very distant date. In Maguire v. Ardagh, cited above, I discussed at some length whether it was at all

realistic to describe the finding of an Oireachtas Committee in relation to a possible unlawful killing as merely an “opinion”. I now

merely refer to this discussion again and to the observations on the meanings of words such as “finding” contained therein.

146. It is certainly within the power of the legislature to make provision for an award of costs before a Tribunal of Inquiry. It did this

in 1997 and had done so previously in 1979. But whether this new power, conferred on a tribunal which provides for the individual

notably attenuated procedural safeguards by comparison with those available in a court is consistent with the Tribunal’s established

constitutional status which depends on its “findings” having the status merely of opinions and being “devoid of legal effect” is

manifestly doubtful. But the issue does not, in my opinion, arise directly in the present case so I propose to abstain from expressing a

concluded view on it.