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  • paragraph 16 1 a b and c He then went on to say that he was satisfied that the necessary undertakings had been given as envisaged by ss 22 23 and 24 of the Act as referred to in s 16 1 d He then considered the grounds of objection to an Order of Surrender relied upon by the appellant and having rejected all those grounds he concluded that an Order for the appellant s surrender should be made It is manifest that in his judgment the learned President had decided that the Order of Surrender should be made under s 16 1 of the Act of 2003 The judgment is manifestly clear and unambiguous in that respect Thus the decision of the High Court was that the appellant should be surrendered to the Kingdom of Spain pursuant to s 16 1 of the Act of 2003 It is thus equally manifest that there was an error or slip in the Order when it referred to s 16 2 instead of s 16 1 and that the Order by reason of that error or slip does not accord with the actual decision of the High Court Although the learned President took care to ask counsel for the State to submit a draft of the appropriate Order and then adopted it apparently without objection from counsel for the appellant that does not take away from its character as an error or slip in the Order having regard to the clear terms of the actual decision of the President set out in the judgment he had previously delivered In my judgment in McMullen v Clancy The Supreme Court unreported 31st July 2002 Nem Diss I pointed out that there is a fundamental public interest in the due administration of justice which requires that the Order of a court accord with what the court has decided and that the decision of a court should not be thwarted by an accidental slip or error or clerical mistake As I also pointed out in that case the courts have an inherent as well as an express in the case of Order 28 Rule 11 jurisdiction to amend a final Order In the ordinary course of events an application would be made to the judge who decided the case to correct an error or slip in the Order but the Courts inherent jurisdiction to correct such errors made in Orders particularly where they are clear and manifest is not confined to the judge or court from which the error emanated Indeed there have been cases where such errors have been corrected after a considerable lapse of time such as in two cases referred to in my judgment cited above where corrections where made after a lapse of 19 years and 33 years respectively Where a matter comes before this Court on appeal and there is no dispute concerning the terms of the decision as set out in the judgment of the High Court and there is a clear and manifest error in the Order made on foot of that judgment this Court has in my view an inherent jurisdiction in the interests of the proper administration of justice to amend the Order so as to accurately reflect the decision made in the High Court This is necessary so that the appeal can be determined on the basis of what was actually decided rather than on the basis of an erroneous Order There may be circumstances where this Court in its discretion might consider it more appropriate for such an issue to be remitted for decision by the High Court but given the clear and manifest nature of the error in the Order I do not think that this is one of those cases Therefore in my view this Court should exercise its inherent jurisdiction to amend the High Court Order by substituting a reference to s 16 1 for the reference s 16 2 of the Act of 2003 in that Order A second ground upon which the appellant seeks to challenge the terms of the High Court Order was that it failed to confirm that some person had been duly authorised by the issuing State to receive the appellant and or to identify the person duly authorised by the issuing State to receive him The contention that the Order of the High Court should have named a person authorised by the Kingdom of Spain to take custody of the appellant when surrendered pursuant to it was abandoned in the course of argument but I still find it difficult to follow the reasoning why the Order should be considered infirm because it failed to confirm in some way that some person had been duly authorised specifically to receive the appellant For the purpose of this submission the appellant relies on the provisions of s 16 1 insofar as it provides that when making an Order for the surrender of a person the court may make an Order directing that the person be surrendered as such other person as is duly authorised by the issuing State to receive him or her This is precisely what the High Court Order provides In my view the terms of the High Court Order in this respect complied fully with the obligation on the High Court pursuant to that section when making an Order for Surrender This ground of appeal must also fail Surrender for the purposes of trial As regards the substance of the application by the respondent for an Order for the surrender of the appellant pursuant to the European Arrest Act 2003 the primary ground of objection advanced on his behalf was that the relevant Spanish judicial authorities sought the appellant s return not for the purposes of a trial on the charge specified in the warrant but solely for the purpose of continuing a fact finding investigation of the offence There is no doubt and indeed it is common case that a person may only be surrendered to another State on foot of a European Arrest Warrant for the purpose of prosecuting him or her for the offence s in the warrant that is to say for the purpose of putting that person on trial Section 10 of the European Arrest Warrant Act 2003 provides for an arrest and surrender to a requesting State where a European Arrest Warrant has been duly issued in respect of a person against whom that State intends to bring proceedings for the offence to which the European Arrest Warrant relates There is of course also provision for the surrender of a person to serve or complete a sentence having fled from the requesting State but this does not arise in this case That the surrender of a person to another State on foot of a European Arrest Warrant is for the purpose of putting that person on trial is further underlined by the provisions of s 11 3 b of the Act of 2003 which provides that such a warrant shall be accompanied by a statement in writing issued in the issuing State which states inter alia that where the person has not been charged with the offence concerned a decision to charge him or her with and try him or her for the offence concerned has been made by a person who in the issuing state performs functions the same as or similar to those performed in the State by the Director of Public Prosecutions In this case the warrant was issued by a Judge of the Court of First Instance also referred to in translation as a Magistrates Court of Marbella Spain No issue arises in this appeal that this was the appropriate authority in Spain for the issuing of the warrant The mere fact that an arrest warrant is issued by a judge in a foreign jurisdiction may not of itself necessarily imply that it is issued only for the purpose of charging the person concerned and putting him or her on trial for an offence or offences In some jurisdictions particularly in what may be termed civil law jurisdictions criminal investigations are often conducted by or under the supervision of a judge Such a judge may require a suspected person to appear before him or attend in his chamber in connection with the conduct of the criminal investigation rather than for the purpose of charging that person with a view to putting him or her on trial Warrants issued for the purpose of such investigations could not be considered as requiring the surrender of a person for the purpose of being tried for an offence The surrender of a person for the purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstances of the offence It means that the decision to prosecute is not dependant on such further investigation producing sufficient evidence to justify putting a person on trial Nor would it exclude normal pre trial procedures in a requesting State such as for example the procedure known as a preliminary examination as was provided for in this country under the Criminal Procedure Act 1967 before it was substantially amended Of course what we are concerned with here is not any warrant but a European Arrest Warrant It is not in issue that it complies with the form required by the Act of 2003 The warrant contains inter alia the words I request that the person mentioned below be arrested and surrendered for the purpose of conducting a criminal prosecution The warrant is signed by the Spanish Judge Accordingly the request made in the terms of the European Search Warrant is for the surrender of the appellant in these proceedings for the purpose of prosecuting him for the offence specified in the warrant In short his surrender is sought only for that purpose and an Order for his surrender may be made only for that purpose Furthermore a certificate from the Spanish Judge as provided for in s 11 3 b of the Act of 2003 accompanied the arrest warrant in the following terms as translated CERTIFIES That in the course of the inquiry carried out in this Court under NR 152 2000 for homicide against Michael Dermot McArdle a writ has been passed on date 09 19 01 with the agreement of the Public Prosecution ordaining the judicial arrest of Michael Dermot McArdle as accused of an alleged offence of homicide in order to try him for that offence and that it has also been agreement by writ of the 10 26 01 and also in agreement with the Public Prosecutor s request to propose to the Spanish Government the extradition of the accused which was reiterated by Writ of the 02 17 04 all of this to the aforementioned purpose of his trial for the said offence of homicide emphasis added The certificate is dated 15th June 2004 and the warrant is dated 19th August 2004 In this case an issue was raised by the appellant in the High Court as to whether the Spanish request on foot of the European Arrest Warrant was in fact for the purpose of investigating the alleged offence rather than for the purpose of putting him on trial This was a question of fact to be determined by the High Court on the basis of the evidence and material before it The learned President concluded that the purpose of the request is to put the appellant on trial for the offence specified in the warrant The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States The recitals to that decision make reference to the implementation of the principle of mutual recognition of criminal proceedings and in particular recital number 6 which states the European Arrest Warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the cornerstone of judicial cooperation Accordingly it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s 11 3 of the Act of 2003 both of which state and certify respectively that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial that must be acknowledged as at least prima facie evidence of the purpose of which the request is made It would in my view normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought In this case the learned President had before him first of all the warrant and the stated purpose of the warrant as well as the certificate from the Spanish Judge referred to above certifying that the purpose of the request was to put the appellant on trial The learned President also had before him affidavits and material sworn and furnished by a Spanish lawyer acting on behalf of the appellant He contested inter alia the decision of the Spanish Judge to charge and put the appellant on trial He also gave evidence to this effect at the hearing in the High Court Essentially he claimed that all of the procedures necessary in connection with the investigation by the judge had not been completed and or the procedural scene so to speak had not been set or reached which would have entitled the Spanish Judge to decide that the appellant should be charged and put on trial The learned President also had before him various documents and material supplied by the Spanish Judge directly in addition to the warrant and certificate referred to above In response to some of the assertions of the Spanish lawyer for the appellant he maintained that the investigative procedure was complete and at one point stated However after the current preliminary investigation the general initial investigative procedure what would commence is a process of trial by jury and not an abbreviated procedure nor summary proceedings or an ordinary criminal prosecution as affirmed by the Spanish lawyer you mention The reason why the trial by jury process has not yet started is that it requires in accordance with the statute that governs it Organic Law 5 95 the convening of an appearance at which the accused Michael Dermot McArdle must be present which obviously cannot occur until he is handed over to Spanish Judicial authorities specifically to this Court This is why the trial by jury process has not yet begun but will be initiated as soon as the accused is placed at the disposal of this Court emphasis added It is not the function of this Court to retry the primary issues of fact determined by the High Court but to review the evidence before the learned President in order to determine whether he erred in law in concluding that the purpose of the request set out in the European Search Warrant before him was the prosecution and trial of the appellant on the offence alleged therein For that reason it is not necessary or appropriate to review and weigh the evidence and material provided by the appellant and the State The question is whether the learned President was entitled to find as he did In my view having regard to the evidence and material before the learned President there was ample evidence which entitled him to conclude that the purpose of the European Search Warrant in this case is the prosecution and trial of the appellant as envisaged by the Act of 2003 I find no error of law in that finding Before concluding on this issue there is one other point raised by the appellant in connection with it based on new evidence which he has sought to introduce in this appeal This new evidence consisted of a copy and translation of the judicial file of the court in Marbella I will deal with the question of this new evidence later but for present purposes the only document relevant to the issue concerning the purpose of the request for surrender is a document contained at p 91 of the file English language version This document relates to a decision taken by the court in Marbella on 28th March 2000 relating to the investigation proceedings and whereby the court agreed on the provisional dismissal and the archiving of the current cause That provisional decision was confirmed by an Order of 9th May 2000 These documents were not before the High Court and counsel for the appellant claims that had they been so they would have reinforced his submission on the issue that the purpose for which the appellant s return is sought is not for the purpose of putting him on trial Moreover counsel for the appellant pointed out that the learned President erred in treating a document from the Magistrates Court Number 5 dated 14th February 2000 as the document dismissing the investigation proceedings This was a document tendered on behalf of the appellant in the High Court It was submitted in doing so the President attached no importance to the February 2000 document since it related to a procedure akin to a coroner s inquest It was on that basis that the President decided that an Order allegedly dismissing the investigative procedure was of no importance but he was referring to the wrong document It is the case as it now transpires that the President was referring to the wrong document As regards this aspect of the

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  • to overcome the protection that the Director of Public Prosecutions enjoys Position of the D P P 15 It is appropriate to analyse the position of the Director of Public Prosecutions as a starting point for the resolution of the issues in this case 16 In State McCormack v Curran 1987 ILRM 225 the Director advanced the very far reaching proposition that his decisions to prosecute or not to prosecute were Not as a matter of public policy ever reviewable by a court This position was rejected but a degree of privilege arguably only slightly less thorough going was envisaged in the judgments In the High Court Barr J held that In every case therefore the D P P is obliged to make an independent assessment as to whether a particular person should be prosecuted or not He has no obligation to state his reasons for any such decision and indeed it would appear to be contrary to public policy that he should be compelled to do so 17 On appeal Finlay C J said In regard to the D P P I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him Again I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration I do not consider that it would be wise or helpful to list them in any exclusive way If of course it can be demonstrated that he reaches a decision mala fide or influence by an improper motive or policy then his decision would be reviewable by a court To that extent I reject the contention made on behalf of the respondent that his decisions were not as a matter of public policy ever reviewable by a court In the instant case however I am satisfied that no prima facie case of mala fides has been made out against either of the respondents with regard to this matter Secondly I am satisfied that the facts appearing from the affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the D P P not to prosecute the appellant within this jurisdiction and that being so we cannot be called upon to explain his decision or give the reasons for it nor the sources of information upon which it was based 18 McCormack was an unusual case where the applicant was attempting to force the Director of Public Prosecutions to prosecute him on particular charges so that he could be tried in the Republic rather than in Northern Ireland pursuant to the Criminal Law Jurisdiction Act 1976 19 In H v D P P 1994 2 ILRM 285 there was also an attempt to compel the Director to institute a prosecution against the applicant s husband and another person or give reasons and supply documents relating to the decision not to do so This attempt was unsuccessful The policy reason which may in part underlie the special position of the Director was mentioned in the judgment of O Flaherty J as follows If the Director were to be subjected to frequent applications for mandamus compelling him to bring prosecutions by discomforted persons I apprehend that his office would be stretched beyond endurance in seeking to justify that which should not require to be justified 20 The test indicated in the extracts given above from the decisions in McCormack were adopted in H and relief was refused because in the words of Denham J The facts of this case do not exclude the reasonable possibility of a valid decision by the Director not to prosecute the persons named consequently the Director cannot be called upon to explain his decision or to give the reasons for it nor the sources of information upon which it is based 21 The two last mentioned cases were cited with approval in Eviston v Director of Public Prosecutions 2002 3 IR 260 This was a case in which the applicant Ms Linda Eviston was involved in a road traffic accident in which another driver was killed on the 28th June 1998 The applicant made a full statement to the Gardaí and gave them copies of her consultant engineer s report suggesting that the accident was due to factors outside her control The matter was considered in the Office of the Director and a decision made that no prosecution should be instituted The applicant was made aware of this in early December On the 23rd December however the Gardaí made an application for a summons alleging the indictable offence of dangerous driving causing death against the applicant It transpired that the Director had changed his mind A letter had been received from a relative of the deceased asking the Director to prefer charges of some description against the applicant The summons was applied for within four working days of receipt of the letter The applicant instituted judicial review proceedings to restrain the prosecution and was successful in this A deponent on behalf of the Director said that the Office of the Director of Public Prosecutions operated a system of internal appeal or review and that this was triggered by the relative s letter But the applicant was of course wholly unaware of this system and had been given no reason to believe that the decision not to prosecute her might be reviewed and a contrary decision taken 22 Keane C J in his judgment referred to the two cases cited above and said that In each case the Court was concerned with a a decision not to prosecute in a particular case and b a challenge to the merits of that decision The decisions accordingly go no further than saying that the Court will not interfere with the decision of the respondent not to prosecute where a No prima facie case of mala fides has been made out against the respondent b There is no evidence from which it could be inferred that he has abdicate his functions or been improperly motivated and c The facts of the case do not exclude the reasonable possibility of a proper and valid decision of the respondent not to prosecute the person concerned They also make it clear that in such circumstances the respondent cannot be called upon to explain his decision or give the reasons for it or the sources of information on which it is based 23 The learned Chief Justice then referred to The State O Callaghan v Ó hUadaigh 1977 IR 42 and continued I am satisfied that the decision of Finlay P in that case that the respondent is not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures was correct in point of law It also seems to me to follow inexorably from that proposition that where as here the respondent avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute but concedes that there has been no change of circumstances his decision is as a matter of law prima facie reviewable on the ground that there has been a breach of fair procedures 24 It thus appears that the right of the respondent to give no reasons for a decision to prosecute or not to prosecute except in the very limited circumstances set out in the first extract above from Eviston is very firmly established But Ms Eviston was granted relief because The distinguishing feature of this case is the communication by the respondent of a decision not to prosecute to the person concerned followed by a reversal of that decision without any change of circumstance or any new evidence having come to light In the light of the legal principles which I have earlier outlined I am satisfied that the decision of the respondent was prima facie reviewable by the High Court on the grounds that fair procedures had not been observed viewing the matter objectively I am forced to the conclusion that in circumstances where the respondent candidly acknowledges that there was no new evidence before him when the decision was reviewed the applicant was not afforded the fair procedures to which in all the circumstances she was entitled It follows that the requirements of the Constitution and the law will not be upheld if the appeal of the respondent in the present case were to succeed 25 On this appeal Mr Michael O Higgins S C for the applicant appellant relied heavily on Eviston and pointed out that in that case the Director had in fact disclosed the letter he had received and the fact that he had reviewed the previous decision on foot of it That much is undeniable though it appears that the applicant was aware before that disclosure was made that there had been an approach from the deceased s family though not of course of its contents But even allowing that these matters were voluntarily disclosed by the Director that does not appear to me to help the applicant in this case The disclosure in Eviston extended to the text of the letter received by the Director and the existence of a system of appeal or review It did not extend to the reasons for either the first decision not to prosecute or the second decision to the contrary effect except insofar as these can be inferred from the admission that there was no new evidence available when the second decision was taken But that only leads to the conclusion that the second reviewing official said to have been at the highest level took a different view of the case than the original official had The reasons or impression which actuated either decision maker were not revealed Moreover the case trenchantly reasserts the right of the Director not to give reasons for his decisions to prosecute or not to prosecute The submissions 26 Mr Michael O Higgins S C acknowledged that the Director s decision was not reviewable except in the very limited circumstances which are pithily expressed in the first exert given above from the judgment of Chief Justice Keane in Eviston But he emphasised that the Court was not now addressing the question of whether that hurdle had been overcome it was dealing solely with an application for discovery He was entitled to this he said on the basis that the order would only require the Director to list the documents he had if he claimed privilege over them that matter would have to be subsequently addressed presumably on a motion for Inspection He said that the cases established that the decision of the Director was albeit in limited circumstances capable of being reviewed and that fact he said in itself grounded the entitlement to discovery He said that the Director was not entitled to maintain a studied silence and rely exclusively on the onus of proof being on the applicant In that connection he relied strongly on the case of Brennan v Windle 2003 3 IR 494 He also referred pre emptively to the case of K A v Minister for Justice 2003 2 IR 93 27 That case featured discovery which was sought in aid of an attempt to quash the respondent s refusal to grant the applicant refugee status He sought particulars of the total number of decisions reached by each member of the Refugee Appeals Tribunal which were not affirmed or accepted by the Minister and secondly the total number of decisions recommending grant and refusal respectively of refugee status by each member of the Tribunal and the Appeal Authority Dealing with the question of discovery in judicial review Finlay Geoghegan J first set out the ordinary principles on which discovery is ordered and continued It is however inherent in the nature of judicial review that the necessity for discovery will be more difficult to establish than in plenary proceedings This follows the fact that in judicial review what is at issue is the legality of the decision challenged In many instances the facts are not in dispute Discovery will normally but not exclusively be confined to factual issues in dispute It can be envisaged that an applicant for judicial review may raise a factual issue and whilst not disputed consider that there are documents in the possession of the respondent which would assist in the proof of the relevant related fact at the hearing and that a court would take the view that discovery of such documents is necessary for disposing fairly of the application for judicial review The limitation of discovery in such circumstances is that it must not be considered to be a fishing exercise It is difficult to state in a general way the precise dividing line but it is clear that it is not sufficient for the applicant simply to make an assertion not based in any substantiate act and then seek discovery in the hope that they will exit documents which support the assertion 28 The learned judge went to refer with approval to the decision of Bingham M R in R v Secretary of State for Health ex parte Hackney London Borough unreported Court of Appeal 24th July 1994 There the Master of the Rolls expressed the test be met by an applicant for discovery in judicial review proceedings as follows Have they raised a factual issue of sufficient substance or adduced evidence which grounds a reasonable suspicion of unlawfulness such that the application cannot fairly be resolved without discovery 29 In K A the form of illegality alleged was that the Minister in making his decision to deport failed to exercise his discretion and or adhered to an inflexible policy rule But there was no evidence of this the applicant sought discovery in the hope of finding some which is the activity usually described as fishing 30 In the present case Mr O Higgins relied on what he called the disparity in the treatment of the applicant and of Ms Kavanagh respectively as giving the substance to the allegation of illegality in the present case and as distinguishing it from K A He says that this disparity indicates prima facie irrationality or perversity in the decision he challenges and that that is enough to entitle him to discovery on the established principles The Disparity 31 In my view the distinction or as Mr O Higgins called it the disparity identified in this case in the treatment of the two girls is not such as gives rise to any prima facie apprehension of impropriety Not only does it not amount to a prima facie case it does not even suggest impropriety The reason why the applicant prefers the term disparity to distinction is that the former word is suggestive of inequality both in its Latin derivation and in its contemporary usage Equality before the Law 32 Equality before the law is of course required by Article 40 1 of the Constitution which provides All citizens shall as human persons be held equal before the law This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity physical and moral and of social function 33 The Irish version of the first sentence of this Article Áirítear gurb ionann ina bpearsain daonna na saoránaigh uile i láthair an dlí This may be regarded as acknowledging the equality of all citizens in their human personality before the law 34 But these words do not require a rigid or mathematical equality of treatment in all circumstances In the words of Henchy J in The State Keegan v Stardust Victims Compensation Tribunal 1986 IR 642 at 658 I would accept that Article 40 1 of the Constitution requires that people who appear before the Courts in essentially the same circumstances should be dealt with in essentially the same manner 35 There are numerous examples of legitimate distinctions or disparities throughout our law based on differences of individual functions or circumstances Thus for example in Dillane v Ireland 1980 ILRM 167 the Supreme Court upheld a provision of the District Court Rules whereby costs could not be awarded against a member of the Garda Síochána who acted as prosecutor though they could be awarded against an ordinary citizen acting as a common informer In Quinns Supermarket v Attorney General 1972 IR 1 Walsh J said at pages 13 and 14 that the constitutional provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and a guarantee against any inequalities grounded upon an assumption or indeed a belief that some individual or individuals or classes of individuals by reason of their human attributes or their ethnic or racial social or religious backgrounds are to be treated as the inferior or superior of some other individuals in the community 36 For the purpose of this case it is sufficient to note the well established scope for distinguishing between individuals There is no need to go into the question of whether the guarantee of equal treatment applies only to matters touching the human personality as such and not to matters such as commercial trading or educational activity These issues simply do not arise here The Juvenile Diversion Scheme 37 The complaint of inequality in this case arises in the context of the Juvenile Diversion Scheme which was applied to the other girl involved so that she never came before a court at all The information before the Court about this scheme is set out as appendix I to a document published by the Office of the Director of Public Prosecutions Statement of general guidelines for prosecutions The relevant guidelines set out some indisputable matter in relation to juvenile offenders such as

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  • its discretion refuse the relief sought The learned trail judge first dealt briefly with the issue of delay as follows With regard to the issue of delay I am satisfied that the relief which the applicant seeks is such that assuming there was no pending prosecution in the District Court he would be entitled ex debito justitiae Accordingly in these circumstances I would not be disposed on the basis of the delay on the part of the applicant in moving to this court to refuse him the relief which he seeks With regard to the central issue the learned trial judge held that the charges against the applicant were pending at the time that the Act of 1997 came into force He expressed himself satisfied therefore on the basis of the decision in Hamilton v Hamilton 1982 I R 466 that the Act of 1997 did not affect the then pending proceedings in the District Court unless it could be shown that the Act expressly or by necessary intendment provided to the contrary He was satisfied that it did not do so The learned trial judge concluded at page 7 It is clear that the act of 1997 changed the substantive as opposed to the procedural law The Act was prospective in its operation I am satisfied that it cannot be deemed to affect proceedings brought under the pre Act law and pending at the date of the coming into operation of the Act unless the Act expressly or by necessary intendment provided to the contrary As I have held that this it did not do I am satisfied that the Act of 1997 cannot be deemed to have affected proceedings such as those in the instant case pending at the date of the coming into operation of the Act He therefore refused the relief sought by the applicant It does not appear that the learned trial judge considered what effect if any the provisions of the Interpretation Amendment Act 1997 had on the applicant s prosecution and conviction THE STATUTORY FRAMEWORK Section 28 1 of the Non Fatal Offences Against the Person Act 1997 provides as follows The following common law offences are hereby abolished a assault and battery b assault occasioning actual bodily harm c kidnapping and d false imprisonment Among the enactments listed as repealed in the schedule to the Act of 1997 is section 42 of the Offences Against the Person Act 1861 The Act of 1997 provided inter alia for the creation of three new statutory offences i e assault assault causing harm and causing serious harm There were however no transitional provisions in respect of any common law offences of assault and battery or assault occasioning actual bodily harm alleged to have been committed but not prosecuted to conviction prior to the coming into force of section 28 1 of the Act of 1997 Section 21 1 of the Interpretation Act 1937 provides that Where an Act of the Oireachtas repeals the whole or a portion of a previous Statute then unless the contrary intention appears such repeal shall not b affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder or c affect any right privilege obligation or liability acquired accrued or incurred under the statute or portion of a statute so repealed or d affect any penalty forfeiture or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal or e prejudice or affect any legal proceedings civil or criminal pending at the time of such repeal in respect of any such right privilege obligation liability offence or contravention as aforesaid It is clear that this section applies solely to the repeal of a statutory provision it has no application to the abolition of a common law offence The difficulty which was caused by the absence of any transitional provisions in the Act of 1997 was first highlighted in the judgment of the Special Criminal Court in the People Director of Public Prosecutions v Kavanagh unreported 29th October 1997 As a result the Oireachtas enacted the Interpretation Amendment Act 1997 which came into effect on the 4th November 1997 Section 1 of that Act provides as follows 1 1 Where an Act of the Oireachtas abolishes abrogates or otherwise repeals an offence which is an offence at common law then unless the contrary intention appears such abolition abrogation or repeal shall not a affect the previous operation of the law in relation to the offence so abolished abrogated or repealed or any other offence or anything duly done or suffered thereunder b affect any penalty forfeiture or punishment incurred in respect of any such offence so abolished abrogated or repealed or any other offence which was committed before such abolition abrogation or repeal or c prejudice or affect any proceedings pending at the time of such abolition abrogation or repeal in respect of any such offence or any other offence During the years following the passing of that Act consideration was given in a number of decisions of the High Court to the combined effect of section 28 1 of the Act of 1997 and the provisions of the Interpretation Amendment Act 1997 The position was somewhat confused The law was however clarified by the decision of this Court in Grealis v Director of Public Prosecutions and Corbett v Director of Public Prosecutions 2001 3 I R 144 to which I shall refer in some detail later in this judgment SUBMISSIONS OF COUNSEL There was no issue between the parties as to the question of delay It was accepted that if the applicant was in law entitled to the relief sought he was so entitled ex debito justitiae and not as a matter of discretion Twelve detailed grounds of appeal were set out it the applicant s notice of appeal In his submissions to this court however senior counsel for the applicant Mr O Tuathail relied in the main on the first and central ground of appeal that the learned trial judge fell into error in not having any or any sufficient regard to the decision of this court in the case of Grealis v Director of Public Prosecutions Mr O Tuathail submitted that that case had strong parallels with and was analogous to the present case He submitted that the learned trial judge erred in relying on the authority of the Buckley Sinn Féin Funds case and of Hamilton v Hamilton in that he applied a form of double construction rule which had been specifically rejected by Keane C J in his judgment in the Grealis case Hamilton v Hamilton was in any case Mr O Tuathail said a civil case inter partes a very different situation from that of a criminal prosecution Mr O Tuathail argued that once the common law offence with which the applicant was charged was abolished the prosecution of the applicant was dead and could not be revived The applicant could not in 1998 be convicted of a non existent offence As far as the Interpretation Amendment Act 1997 was concerned its effect as had been held by this court in Grealis was prospective It could not retrospectively revive the prosecution of the applicant Counsel for the respondents Mr McDonagh put forward a rather different line of argument from that put forward on behalf of the respondents in the High Court He referred in some detail to the judgments of this court in Grealis and submitted that the factual situation in Grealis differed from that in the present case In Grealis while the alleged assault took place prior to the 19th August 1997 the summonses were not issued until September 1997 after the abolition of the common law offence Keane C J in his judgment did not deal with the situation that applied in the present case where both the summons and the return date before the District Court predated the abolition of the offence many of Chief Justice Keane s more general dicta were obiter Mr McDonagh submitted that Denham J in her judgment had specifically dealt only with the situation where there was no common law offence when the summonses were issued She had stated at page 178 of the report that proceedings in the cases in issue were not pending when the Act came into force so that that issue did not arise In the instant case counsel argued both the summons and the return date of 24th March 1997 were prior to the 19th August 1997 proceedings against the applicant were therefore pending Mr McDonagh referred to the constitutional importance of the community s right to prosecute offences He submitted that section 1 of the Interpretation Amendment Act 1997 operated to validate the prosecution of the applicant unless it could be shown that his constitutional rights were thereby adversely affected It was established law that the community s right to prosecute was outweighed by the right of an accused person to a fair trial but no argument had been made by the applicant to show that he did not receive a fair trial in the District Court or on appeal in the Circuit Court Section 1 1 of the Interpretation Amendment Act 1997 therefore applied in the case of the applicant section 1 4 did not come into effect In reply counsel for the applicant again stressed what he submitted was the ratio of the decision in Grealis that after the offence was abolished by an Act which did not provide for any transitional arrangements the applicant was in a situation where he was not liable for his actions as being an offence CONCLUSIONS In his application to the High Court for an Order of Certiorari and in his appeal to this court the applicant has essentially relied on the decision of this court in Director of Public Prosecutions v Grealis and Director of Public Prosecutions v Corbett 2001 3 I R 144 Counsel for the respondents accepts as he must the authority of Grealis but seeks to give a relatively narrow interpretation to the ratio of that decision and to distinguish Grealis from the present case on the facts The distinction argued for is that in the present case the return date before the District Court 24th March 1997 predated the abolition of the common law offence whereas in the case of Grealis the summonses were not issued until after its abolition In the case of Corbett which was dealt with together with that of Grealis the summons predated 19th August 1997 but the return date 1st September 1997 did not In his judgment the learned trial judge seems to have given little detailed consideration to the decision in Grealis holding as he did that the case turned on whether the abolition of the offence could interfere with the then pending proceedings in the District Court In order to reach a conclusion in the present case it is thus necessary to consider in some detail the ratio of this court s decision in Grealis In his judgment under the heading Conclusions Keane C J approached the matter in a robust fashion He stated at page 155 of the report Where Parliament by legislation abolishes a criminal offence and says that in effect the conduct which it was there to restrain will henceforth be lawful it would seem a matter of common sense that no court could convict a person of such an offence How it might well be asked could any court have power to inflict punishment on a person who had done nothing wrong Fortunately the law as evolved in judicial decisions frequently if not invariably does accord with common sense and so it is in the present case The learned Chief Justice went on to refer to a long established line of English authority as follows As long ago as 1764 an English court said in Miller s case 1764 1 W I P 450 Even offences committed against the clause while in force could not have been now punished without a special clause to allow it and therefore a clause is inserted in the repealing statute for that purpose But that case recognised as common sense would also have suggested that it is perfectly competent for the legislature to provide in the repealing statute that it is not to affect crimes alleged to have been committed before it was enacted As Tindal C J put it in Kay v Goodwin 1830 6 Bing 576 at p 582 I take the effect of repealing a statute to be to obliterate it as completely from the records of the parliament as if it had never passed and it must be considered as a law that never existed except for the purpose of those actions which were commenced prosecuted and concluded while it was an existing law The same view of the law was expressed in even more trenchant language by Rolfe B in R v Swan 1849 4 Cox C C 108 where he said at p 114 I think it perfectly clear that when a statute is repealed simpliciter you cannot afterwards proceed against a person for anything done under it I desired to have handed up to me Sir Robert Peel s Acts and I find a vast number of statutes constituting certain offences were by then repealed and new Acts substituted in all of them I feel that the Acts are repealed from a certain day except as to offences committed before their repeal and which are to be dealt with as though their repeal had not taken place I presume that was only done because the legislature thought such a provision necessary some of those offences were capital ones by the old law but the punishment of death was repealed by the 6 Geo 4 c 16 and if the principle now contended for had been upheld a man might have been hanged at a time when a statute was in force which declared that such a punishment should not be awarded It might be by mistake that the new Act did not contain such a provision as I have mentioned but it very positively repeals all that is gone before and it is much safer to adhere to what the legislature enact than to speculate on what it intended Keane C J also referred to a number of United States authorities in particular the words of Chief Justice Marshall in Yeaton v United States The General Pickney 1809 9 U S 281 It has long been settled on general principles that after the expiration or repeal of a law no penalty can be enforced nor punishment inflicted for violations of the law committed while it was in force unless some special provision be made for that purpose by statute In that case it was held that in the absence of any such special provision the prosecution could not be maintained At this point it is useful to note that Denham J in her judgment also relied on the authority both of Yeaton v United States and of R v Swan page 177 of the report In his judgment Keane C J went on to reject any interpretation of the Act of 1997 which relied on the double construction rule or other rules of statutory interpretation which would imply an unexpressed intention of the Oireachtas Such rules could only apply where the language of the statute might be ambiguous He went on to say at page 158 Section 28 1 of the Act of 1997 is however clear and unambiguous The only construction of which it is capable is that the common law offences to which it applies are abolished from the coming into force of the section They cease to exist in law with all the consequences that flow from their abolition spelt out in the many authorities to which I have referred Counsel in the present case have been unable to put forward any construction of the provision in question which displaces the plain and unambiguous meaning of the words the draftsman has used Similarly Denham J in her judgment referred to the well known passage in Howard v Commissioners of Public Works 1994 1 I R 101 in which Blayney J stated at p 151 The cardinal rule of the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves If the words of the statutes are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense Keane C J concluded at page160 that the applicants in both cases in Grealis and Corbett were entitled to succeed unless the State could rely on the Interpretation Amendment Act 1997 It does not appear that he considered the question of whether the prosecution was pending before the District Court or not as being particularly relevant indeed he specifically rejected an approach based on the Buckley Sinn Féin Funds case taken by the High Court in the case of Quinlivan v Governor of Portlaoise Prison No 2 1998 2 I R 113 The position as simply stated was that no court could convict a person of an offence which no longer existed Keane C J went on to discuss the provisions of section 1 of the Interpretation Amendment Act 1997 in the light of the decision of this court in Shelly v District Justice Mahon 1990 1 I R 36 In that case the High Court and this court by a majority held that the purported conviction of the applicant in that case by the District Justice was a nullity and that any purported retrospective validation would conflict with his constitutional right to be tried on a criminal charge in due course of law by a judge duly

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  • It is not necessary for me in any way to consider that issue as it does not arise in this case Here the court is concerned with a tribunal set up by statute Relevant to that issue Lord Kilbrandon had this to say at p 918 If then arbitrators are not immune from suit what about the judges Here I believe one is in a different region to which different principles apply I do not rely on considerations of public policy although no doubt it is the general acceptance of the principles which has caused a public policy to be adopted The whole subject has recently been reviewed in Sirros v Moore 1974 3 All ER 776 I am aware that in trying to formulate a principle I am straying more towards contract than towards tort but as I explained earlier I am not distressed by that The state I use the word for convenience sets up a judicial system which includes not only the Courts of Justice but also the numerous tribunals statutory arbitrators commissioners and so on who give decisions whether final or not on matters in which the state has given them a competence To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies like as before them the citizen must appear to answer claims or complaints against him This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere The citizen does not select the judges in this system nor does he remunerate them otherwise than as a contributor to the cost of government The judge has no bargain with the parties before him He pledges them no skills His duties are to the state it is to the state that the superior judge at least promises that he will do justice between all parties and behave towards them as a judge should I do not suppose that there is any English lawyer and he would be a bold Scottish lawyer who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions if those arrangements are deemed to be inadequate it is for parliament to put the matter right And if it be necessary to state the matter in terms of the law of tort litigants are not persons to whom judges owe a legal duty of care a duty which does not exist in the abstract but only towards persons in particular relationships The fact that he is under a moral duty is nihil ad rem Judges in this context include of course persons forming tribunals and other bodies such as I referred to above You do not test a claim to immunity by asking whether the claimant is bound to act judicially such a question as Lord Reid pointed out in Sutcliffe v Thackrah leads to arguing in a circle Immunity is judged by the origin and character of the appointment not by the duties which the appointee has to perform or his methods of performing them I say nothing here about the immunity of counsel and witnesses which again raises quite different and to this appeal irrelevant consideration I find myself in complete agreement with that passage Those principles put into a modern form by Lord Kilbrandon have applied in the common law courts for hundreds of years The position was neatly summarised by Lord Denning M R in Sirros v Moore cited above at p 781 The passage in question reads as follows Ever since the year 1613 if not before it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him The words which he speaks are protected by an absolute privilege The orders which he gives and the sentences which he imposes cannot be made the subject of civil proceedings against him No matter that the judge was under some gross error or ignorance or was actuated by envy hatred and malice and all uncharitableness he is not liable to an action The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus or a writ of error or certiorari or to take such step to reverse his ruling Of course if the judge has accepted bribes or been in the least degree corrupt or has perverted the court of justice he can be punished in the criminal courts That apart however a judge is not liable to an action for damages The reason is not because the judge has any privilege to make mistakes or to do wrong It is so that he should be able to do his duty with complete independence and free from fear It was well stated by Lord Tenterden C J in Garnett v Ferrand 1827 6 B C 611 at 625 626 This freedom from action and question of the suit of an individual is given by the law to the Judges not so much for their own sake as for the sake of the public and for the advancement of justice that being free from actions they may be free in thought and independence in judgment as all who are to administer justice ought to be Those words apply not only to judges of the superior courts but to judges of all ranks high or low Lord Tenterden C J spoke them in relation to a coroner They were reinforced in well chosen language in relation to a county court judge by Kelly C J in Scott v Stansfield 1868 LR 3 Exch 220 at 223 and to a

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  • Tribunal are members of a closed class of persons and are in a particularly close relationship with that body There is no public interest in the amount of the rent fixed It is a matter exclusively of interest to the parties The Respondents accept that unlike the plaintiffs in Siney v Dublin Corporation and in Ward v McMaster both cited above they cannot claim to be persons unable to provide for themselves but submit that in the light of Blake v Attorney General they are entitled to a measure of protection They do not accept that the adjudicative nature of the Tribunal s decisions is relevant the Tribunal is bound to act fairly and with a reasonable measure of expertise There is no justification for immunity Desmond v Riordan 2000 1 I R 505 Finally the Respondents support the conclusion of the learned trial judge that the fact that they seek to recover damages for pure economic loss does not prevent them from recovering Also towards the end of the hearing Mr Counihan introduced a number of examples of cases where damages have been awarded for various wrongs committed Principal among these was Philips v Medical Council 1991 2 I R 115 where Costello J awarded damages for breach of statutory duty against the defendant for failure to determine within a reasonable time an application for registration as a medical doctor The authorities The boundaries of the law of negligence will continue to be debated whenever the courts are asked to award damages in novel categories The underlying principles are nonetheless well established They are That there is a relationship of such proximity between the parties such as to call for the exercise of care by one party towards the other That it is reasonably foreseeable that breach of the duty of care will occasion loss to the party to whom the duty is owed That it is just and reasonable that the duty should be imposed In addition as I will discuss later the law has been slow to impose liability in negligence for damage consisting of pure economic loss Whether there is a relationship of proximity is essentially one of fact The court must look at the circumstances of the parties Keane C J in his comprehensive treatment in Glencar with which all members of this Court agreed cited the memorable formulation by Lord Atkin in Donoghue v Stevenson 1932 A C 562 at p 580 The rule that you are to love your neighbour becomes in law you must not injure your neighbour and the lawyer s question Who is my neighbour receives a restricted reply You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question In all truth it has proved very difficult to improve on Lord Atkin s dictum It underlies the thinking of our courts in the four leading Irish cases decided in recent years which have been cited to us All four cases concerned allegations of negligence in the exercise of statutory powers Siney v Dublin Corporation and Ward v McMaster lie on one side they said that there was proximity and a duty of care Sunderland v Louth County Council and of course Glencar fall on the other side and the plaintiffs lost The plaintiff in Siney became the tenant in a new block of flats built by Dublin Corporation as it was then known pursuant to its statutory powers as housing authority Within two months water began to appear under the floor and fungus grew on the walls all due to defective ventilation This should have been discovered on inspection The flat was unfit for human habitation In addition to finding that there was an implied term in the letting agreement regarding the fitness of the dwelling this Court unanimously held that the Corporation owed a duty of care at common law to the tenant The two factors underlying this conclusion were that the flats were provided for persons of insufficient means to provide houses for themselves and that the defective ventilation was concealed so that the incoming tenant could not have been aware of it and could not reasonably have been expected to discover it see O Higgins C J at page 415 Henchy J gave judgment to the same effect stating at page 422 that there was a proximity of relationship creating a general duty on one side and a justifiable reliance on the other side on the observance of that duty Ward v McMaster concerned a local authority loan granted under section 39 of the Housing Act 1966 and the regulations made thereunder Regulations required the local authority before making a loan to satisfy itself as to the value of the house The scheme it had adopted for the grant of loans was designed for persons unable to obtain loans from commercial agencies The plaintiffs obtained a loan from the council to finance the purchase of a house but had no professional survey carried out The local authority engaged a valuer who reported on the value but they failed to engage anyone to carry out a structural survey The house bought by the plaintiffs with the benefit of the loan turned out to be seriously structurally defective Costello J in the High Court held that there was a relationship pf proximity between the plaintiffs and the local authority They should have been aware that it was unlikely that the first named plaintiff in view of his knowledge that they were going to value the premises and his very limited means would not himself employ a professional person to examine it and so they should have known that if the valuation was carelessly done it might not disclose defects in the premises and as a result the plaintiff might suffer loss and damage This reasoning also underlay the two judgments of Henchy J and McCarthy J on the appeal to this Court Both held that there was a relationship of proximity Henchy J with whose judgment two other members of the court agreed speaking of the regulations under which the local authority had acted expressed the view at page 342 that a paternalistic duty of that kind would not normally be imposed on a mortgagee in favour of a mortgagor He considered that the plaintiff was in a special position A borrower of that degree of indigency could not have been reasonably expected to incur the further expense of getting a structural survey of the house done An attempt was made in Sunderland v Louth County Council 1990 I L R M 658 to apply the reasoning of these two cases to loss alleged to flow from the grant of a planning permission by a planning authority The plaintiff purchased a house which had been built with the benefit of a planning permission granted by Louth County Council Due to the unsuitable condition of the site the house became uninhabitable In an action for damages against the Council McCarthy J at page 663 speaking for a unanimous Supreme Court distinguished the earlier cases saying that they dealt with provision in a social context for those who are unable to provide for themselves The role of the planning authority on the other hand was to act in a watchdog role that is for the benefit of the public at large He concluded The Act referring to the planning acts in conferring statutory powers on planning authorities imposed on them a duty toward the public at large In my view in conferring those powers the Oireachtas did not include a purpose of protecting persons who occupy buildings in the functional area of the planning authorities from the sort of damage which the plaintiffs have suffered The last case of the four is Glencar Exploration plc v Mayo County Council That case concerned a provision included in the development plan for County Mayo prohibiting mining in a large area of the county In earlier proceedings the High Court had held the mining ban to be invalid Glencar Explorations plc and another v County Council of the County of Mayo 1993 2 I R 237 The plaintiff a mining company had to the undoubted knowledge of the defendant Council spent a large amount of money prospecting for minerals in the areas affected by the mining ban pursuant to licenses granted under statutory powers Having succeeded in having the mining ban set aside the plaintiff sued the Council for damages Keane C J speaking for a unanimous Court held that the mining ban had been imposed for the benefit of the community as a whole He contrasted this situation with Siney and Ward v McMaster where each of the plaintiffs belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them In the following conclusive passage at page 141 Keane C J held that there was no relationship of proximity between the parties though combining this conclusion with reference to the test of whether it was just and reasonable that liability should be imposed He said In considering whether such a relationship of proximity existed and whether it would be just and reasonable to impose a duty of care on the respondent I think one also has to bear in mind that this was not a case in which it could reasonably be said that the applicants in incurring the expense of their prospecting activities could be said to have been relying on the non negligent exercise by the respondent of its statutory powers Their position is in contrast to that of the plaintiffs in both Siney v Corporation of Dublin 1980 I R 400 and Ward v McMaster 1985 I R 29 1988 I R 337 where in each case they belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them The applicants in the present case could rely on no more than a general expectation that the respondent would act in accordance with the law which is not in my view sufficient to give rise to the existence of a duty of care The former Chief Justice as I have said appears to combine his conclusion on proximity with the assessment of whether it would be just and reasonable to impose a duty of care However it is clear that he did not think that the necessary relationship of proximity existed between the plaintiffs and the planning authority Essentially the planning function must be exercised for the benefit of the public at large A duty to consider the interests of a particular potential developer would potentially conflict with the duty to the public By contrast in both Siney and Ward v McMaster the performance of the duty to the plaintiffs in each case to inspect properly was in no sense in tension with a public duty Rather it was consistent with and in support of the duty to look after the council s own interests The learned trial judge in the present case having noted that the damages claimed by the Respondents represented compensation for pure economic loss suffered by them stated that However while from time to time the courts in this country have paid lip service to the proposition that damages for an economic loss as distinct from compensation for injury to person or damage to property are normally not recoverable in tort it is recognized that in an appropriate case damages for economic loss resulting from tort is sic recoverable The learned judge went on to quote a passage from the judgment of Keane CJ on this question in Glencar upon which the Tribunal relies Having referred to the necessity as a condition of liability to show a relationship of proximity he spoke as follows at page 134 on the question of economic loss So too with the principle that no action for negligence lay in respect of purely economic loss A major qualification of that principle was established in Hedley Byrne Co Ltd v Heller and Partners Ltd 1964 A C 465 in the case of pecuniary loss caused by a negligent misstatement but until the much discussed decision of the House of Lords in Junior Books Ltd v Veitchi Co Ltd 1983 1 A C 520 it remained the law in both England and Ireland that negligent misstatement apart no action in negligence lay in respect of such damage Returning to this issue at page 143 the former Chief Justice said I would expressly reserve for another occasion the question as to whether economic loss is recoverable in actions for negligence other than actions for negligent misstatement and those falling within the categories identified in Siney v Dublin Corporation and Ward v McMaster and whether the decision of the House of Lords in Junior Books Ltd v Veitchi Co Ltd 1983 1 A C 520 should be followed in this jurisdiction It would be difficult to say that the Respondents in the present case do not satisfy the test of proximity taken in isolation Both landlord and tenant come into a direct relationship with the Tribunal once the latter is asked to review and determine a rent It has only those two parties in contemplation I would not go so far as to accept the submissions of Mr Counihan that performance of the Tribunal s function is exclusively of interest to the parties There is a clear public interest in ensuring that rents generally are fairly set and that the law is properly interpreted in doing so That is confirmed by the power of the Minister to refer a point of law to the High Court at the request of the Tribunal Nonetheless in reality the only parties with a direct and real interest in the outcome of the proceedings of the Tribunal are the landlord and the tenant respectively I do not find any support for the exclusion of proximity from the fact that the Tribunal performs an adjudicative function The case law on that subject whether in the sense of the immunity from suit of judges or arbitrators proceeds from considerations of public policy None of those cases states that there is no sufficient proximity between a person damnified by a judicial or quasi judicial decision and the person making it On the contrary it seems that historically in English law while judges of the superior courts were immune from suit those of inferior courts were not To quote Lord Denning M R in Sirros v Moore 1975 1 Q B 118 a judge of an inferior court who went outside his jurisdiction was liable to an action for damages even though he made an innocent mistake of law in so doing More relevant for present purposes is the decision of the House of Lords in Arenson v Arenson 1977 A C to the effect that the immunity of judges and arbitrators was an exception to the general rule that there should be liability for negligence and that there was no reason of public policy for extending to valuers appointed by mutual agreement to value property The immunity of judges at least flows from considerations of public policy Consequently I have come to the clear conclusion that the Respondents claim cannot be defeated for lack of a relationship of proximity between the Respondent and the Tribunal It has not been suggested on behalf of the Tribunal that it was not foreseeable that want of care on the part of the Tribunal would cause loss to the Respondents Accordingly it remains to consider the third question namely whether it is just and reasonable that liability be imposed There is a difference of emphasis between the respective dicta of McCarthy J in Ward v McMaster and Keane C J in Glencar Exploration plc v Mayo County Council In the former case at page 349 McCarthy J said Whilst Costello J essentially rested his conclusion on the fair and reasonable test I prefer to express the duty as arising from the proximity of the parties the foreseeability of the damage and the absence of any compelling exemption based upon public policy I do not in any fashion seek to exclude the latter consideration although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him However at the end of his judgment McCarthy J found it possible at page 352 to decide the case without entering into the question of whether or not it is just and reasonable to impose the duty Henchy J at page 342 rather than positively stating that it would be just and reasonable that liability be imposed expressed the converse conclusion that it would be unconscionable and unfair for the council to be allowed to escape Keane C J considered this issue very fully in Glencar Having reviewed a number of authorities some of which are expressly mentioned in the passage I am about to quote he said It seems to me that no injustice will be done if they plaintiffs are required to take the further step of considering whether in all the circumstances it is just and reasonable that the law

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  • be used for any purpose other than that specified in the request As to the attendance of the suspect the learned High Court Judge held I am not disposed to hold that the attendance of the suspect or accused is ever required where the procedures of s 51 are being applied other than in relation to the taking of evidence from the suspect himself or herself As to the taking of evidence of third parties he held I am satisfied that there was no authority vested in the District Court to issue a warrant or other process for securing the attendance of that witness However the power was vested in the nominated judge to secure the attendance by the issue of a summons or other process as in vested is the District Court As to the Police Property Act application the learned High Court Judge was satisfied that the existence of the application in question was not such as to deprive the Minister of the power to nominate a judge under s 51 2 of the Act of 1994 In the circumstances he was satisfied that the applicant s claim that the Act of 1994 and in particular s 51 was invalid having regard to the provisions of the Constitution must fail Further he held that the applicant had failed to establish any entitlement to the relief sought and the application was refused 9 Submissions on behalf of the applicant Before this Court counsel for the applicant opened the written submissions and made oral submissions stressing a The terms of the request and its complexity b The confidential medical evidence c That the applicant s constitutional right to medical assistance was not protected d That the applicant s constitutional right to privacy was breached e The reservation of the Irish Government to the European Convention on Mutual Assistance in Criminal Matters f That the s 51 procedure amounted to a deliberate denial of the applicant s constitutional right of access to the court in particular with reference to his right to the Police Property Act application g The positive duty of the courts to vindicate the constitutional rights of a person in the face of an abuse of process It was submitted that the procedure under s 51 was the administration of justice It was submitted in the alternative that administrative decisions which seriously affect rights require fair procedures and that this was such a decision Further it was submitted that the availability of the s 51 procedure for conduct which is not criminal under Irish law renders it repugnant to the Constitution 10 Submissions on behalf of the respondents Counsel on behalf of the second and third named respondents and the notice party submitted that the applicant s case is limited to the grounds filed in the amended statement of grounds and the statement of opposition Broader issues it was submitted than were argued in the High Court may not be developed on the appeal It was submitted that the application order s 51 was not the administration of justice Reliance was placed on Salinas de Gortari v Smithwick No 2 2002 2 I R 553 It was submitted that where the requesting State seeks evidence for the purpose of an investigation the Act of 1994 does not require notice to be given It was submitted that what was sought here was property for the purpose of a criminal investigation in the United Kingdom As to the medical reports during the hearing of the appeal the position of the respondents altered Ultimately the Court was informed that the medical reports would not now be transmitted to England It was indicated that an undertaking would be given that he medical reports would not be sent to England In relation to the Police Property Act 1897 it was submitted that the judgment of the High Court was correct It was submitted that the Oireachtas has struck the appropriate balance and that the applicant had not made out that the legislation infringed the Constitution 11 Mutual Assistance the legal context This case arises out of a request to the State from another State for mutual assistance and the subsequent decision of the Minister for Justice Equality and Law Reform to take steps to give assistance Mutual assistance may be requested to assist in the investigation of a crime in another State or it may be requested to assist in the obtaining of evidence for a trial in another jurisdiction 12 Different types of legal systems While the legal systems in Ireland and England are both Common Law and the statutes by which the relevant Convention is invoked in each State are similar certain problems may arise in giving mutual assistance in criminal matters between countries with differing legal systems Indeed the fact that most European States have a civil law system is reflected in the Convention and this may cause some problems in the future in the steps required to implement the law However in this case both the requesting and requested State have a common law system and the diversity which may exist in other situations is not present 13 Letters of Request A Letter of Request dated 20th December 2001 from England formally requested assistance under the provisions of the European Convention on Mutual Assistance in Criminal Matters 1959 in relation to a criminal investigation being conducted by officers of the West Midlands Police Force into the applicant A summary of the circumstances under investigation was given as follows on the afternoon of 10th December 2001 a student at EFF Technology Centre in Birmingham saw a person on the stairs of the building carrying a laptop computer and haversack The student recognised the items as his property he argued with the man who was carrying them and who then ran out to the rear car park having abandoned the property The argument alerted two men who were working at the centre they ran into the rear car park where they saw the offender get into a red toyota motor vehicle Both men tried to extract the offender from the car During the struggle the offender shouted I ll stab you I ll stab you and his right shoe came off The offender then got the car started and reversed causing both men to be thrown from the car The car stopped and then was driven over the head and chest of one of the men Charles William Tandy A student ran over to the toyota motor car and told the driven he had hit someone The driver ignored him and drove off About nine students witnessed the incident Mr Tandy was taken to hospital where he died from his injuries A suspect Jason Thomas Brady was identified The allegation of murder is under investigation by the police authorities in England The Letter of Request stated inter alia The police in England are anxious to obtain any evidence that can link JASON BRADY with the murder and other offences The investigating officers in England would therefore ask that they be permitted to carry out the following enquiries in Ireland 1 To invite Jason Thomas Brady to be interviewed under caution concerning his movements on Monday the 10th December and his involvement in the burglary the murder of Mr Tandy and wounding of Mr Hillstead 2 Further to interview Brady concerning his involvement in the theft of a red toyota motor vehicle R253 VVP 4DCJ and its movements between its taking on the 23rd November and the time of the murder 3 To arrange for Jason Brady to be medically examined for any injuries he may have sustained during the incident 4 To request a current photograph of Mr Brady 5 To request a current DNA sample of Mr Brady 6 To request a set of fingerprints from Mr Brady 7 To serve him with the appropriate documents under the Codes of Practice under the Police and Criminal Evidence Act 1984 in relation to identification procedures 8 To seize all clothing attributable to Jason Brady and secure it in a manner which will allow a subsequent examination of the clothing by Forensic Scientists 9 That enquiries be made to establish any subscriber or registration details relating to any mobile telephone used by or seized from Jason Brady and obtained billing details relating to the usage of this mobile telephone for the period from the 23rd November 2001 to the 19th December 2001 10 To make inquiries with and take statements from family members and associates of Jason Brady in Ireland as to his return date to Ireland and any other information relevant to this inquiry 11 To make inquiries and take statements in relation to any alibi that Jason Brady may provide during any interview under caution 12 To obtain Warrants to search any addresses provided by Jason Brady in Dublin where it may be suggested he has resided during the period covered by this investigation 13 To conduct any other inquiries and interview any other witnesses that are identified in or may become relevant or necessary in the course of the investigation and arising from any of the inquiries listed above In relation to the above enquiries paragraphs 1 to 6 it is accepted that Jason Brady may only be invited to co operate in the procedures set out It is also accepted and desired that he should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish Criminal jurisdictions insofar as they are applicable A further letter was sent to Ireland dated 21st February 2002 This gave up to date information on the enquiries into the murder in England This included the information that the Police had sample DNA relating to Jason Thomas Brady and two sets of his fingerprints Arising from the information the enquiries then indicated The Nike Tailwind training shoe referred to in the summary of facts was found to show a mixed DNA profile The profile was a mix relating to 3 separate persons one an unidentified man secondly an unidentified female and the third has been identified as a match to the DNA held by the National DNA Database relating to Jason Thomas Brady A witness recalls that the driver of the toyota motor car R253 VVP vomited out of the driver s window of the vehicle as it was driven away Examination of vomit spit recovered from the rear offside window and door of the toyota motor car has been identified through its DNA components as matching DNA held on the National Database relating to Jason Thomas Brady A book found inside the toyota motor car following its abandonment has a fingerprint which has been identified as identical to that held on the Fingerprint Database and relating to Jason Thomas Brady Additionally two further fingerprints identified to Jason Thomas Brady by the same means have been found on the outside of the driver s window of the toyota motor car in an inverted position and consistent with what witnesses describe his doing in attempting to keep the car door closed as he drove away The grab handle on the inside passenger door of the toyota motor car shows a mixed DNA profile relating to 3 separate individuals Again one of those individual DNA profiles has been found to be a match to the DNA sample held in relation to Jason Thomas Brady Witnesses describe the man in the toyota motor car as hanging on to the passenger side door grand handle in an attempt to prevent his removal from the vehicle prior to his driving it away and killing Mr Tandy Reference was made to the proposed procedure under s 51 of the Act of 1994 and the authorities were requested to utilize the procedure in relation to the items requested at 3 4 6 8 and 9 of the letter of request dated 20th December 2001 The letter continued I thank the Gardai for making enquiries on our behalf with the occupants of the premises from which Mr Brady was arrested I note that those were his sister Natalie and his brother in law Anthony McDonnagh I am obliged to you for pointing out the recent High Court finding relating to the lack of sanctions under the legislation in the event of the failure of a witness to answer question put to him or her but would however ask you to consider proceeding along the court route in relation to section 51 and Natalie and Anthony McDonnagh 14 Statutory Scheme The statutory scheme providing for mutual assistance is to be found in the Act of 1994 Section 51 of the Act of 1994 provides 51 1 This section shall have effect where the Minister receives a From a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory or b From any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies A request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted or a criminal investigation that is being carried on in that country or territory 2 If the Minister is satisfied a that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and b That proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there He may if he thinks fit by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request 3 For the purpose of satisfying himself as to the matters mentioned in subsection 2 a and b of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate 4 In this section evidence includes documents and other articles 15 Mutual Assistance under the Convention The Act of 1994 enables the obligations undertaken by the State in the European Convention on Mutual Assistance in Criminal Matters and the Protocol on Mutual Assistance to be fulfilled under domestic legislation This Convention is as stated in the Preamble to achieve greater unity among members of the Council of Europe in the belief that the adoption of common rules in the field of mutual assistance in criminal matters will contribute to the attainment of this aim It is reasonable to construe this intention to the Oireachtas in incorporating the Convention within the domestic law of Ireland by the Act of 1994 This construction is supported by the words of the preamble which state An Act to make provision for international co operation in respect of certain criminal law enforcement procedures Consequently this legislation was enacted by the Oireachtas with the intention of establishing common rules to support the development of mutual assistance between the states It should be construed accordingly 16 Safeguards under the Act The Convention provides for mutual assistance between different jurisdictions which have different legal systems The safeguards inherent in the system are as follows i The request must go to the Minister to be screened ii The request must come from a court or tribunal exercising criminal jurisdiction or a prosecuting authority or from an authority which appears to the Minister to have the required function iii The request for assistance must be in relation to and must so specify either a criminal proceedings which has been instituted or a criminal investigation which is being carried out in the requesting State iv The assistance relates only to the specific request v The Minister has to be satisfied a that an offence under the law of the requesting country has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and b that proceedings have been instituted or that an investigation into that offence is being carried out vi The Minister has to nominate a Judge of the District Court to receive such evidence vii The said nominated person receives such of the relevant evidence to which the request relates as may appear to the nominated person to be appropriate for the purpose of giving effect to the request viii The procedure is subject to judicial review by the High Court and as here an appeal to the Supreme Court 17 Proceedings before nominated person Section 51 6 provides that the Second Schedule to the Act shall have effect with respect to the proceedings before the nominated person It states Securing attending of witnesses 1 The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before the court Power to administer oaths 2 The judge may in the proceedings take evidence on oath and may administer an oath for that purpose Privilege of witnesses 3 1 a person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give a In criminal proceedings in the State or b Subject to subparagraph 2 of this paragraph in criminal proceedings in the country or territory from which the request for the evidence has come 2 Subparagraph 1 b of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the court tribunal or authority which made the request 3 Where such a claim made by any person is not conceded as aforesaid he may subject to the other provisions of this paragraph be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court tribunal or authority which requested it if a court in the country or territory in question on the matter being referred to it upholds the claim 4 Without prejudice to subparagraph 1 of this paragraph a personal shall not be compelled under this schedule to give any evidence if his doing so would be prejudicial to the security of the State and a certificate signed by or on behalf of the Minister to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact 5 Without prejudice to subparagraph 1 of this paragraph a person shall not be compelled under this schedule to give any evidence in his capacity as an officer or servant of the State 6 In this paragraph references to giving evidence include references to answering any question and to producing any document or other article and the reference in subparagraph 3 of this paragraph to the transmission of evidence given by a person shall be construed accordingly 4 1 the evidence received by the judge shall be furnished to the transmission to the court tribunal or authority that made the request 2 If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate affidavit or other verifying document the judge shall also furnish for transmission such document of that nature as may be specified in the notice nominating the judge 3 Where the evidence consists of a document the original or a copy shall be transmitted and where it consists of any other article the article itself or a description photograph or other representation of it shall be transmitted as may be necessary in order to comply with the request Supplementary 5 For the avoidance of doubt it is hereby declared that the Bankers Books Evidence Act 1879 applies to the proceedings as it applies to other proceedings before a court 6 No order for costs shall be made in the proceedings 18 Evidence Section 51 1 of the Act of 1994 refers to a situation where the Minister receives a request for assistance in obtaining evidence in connection with criminal proceedings that have been instituted or a criminal investigation that is being carried on Section 51 4 states that in this section evidence includes documents and other articles Other than the inclusion of documents and other articles in the term evidence it is not defined The Act of 1994 and the Convention clearly anticipate assistance both in providing evidence for a trial and requests preliminary to prosecution relating to investigations The term evidence in the Act of 1994 should be construed in context I am satisfied that the term evidence is to be distinguished from our law on evidence The law of evidence determines how facts may be proved in a court of law The law varies from jurisdiction to jurisdiction If the term is used in relation to court proceedings then the relevant law is that of the state in which the proceedings are taking place The evidence sought in this case is for an investigation The term is used to cover evidence relevant to an investigation as here and so may be wider than evidence for a trial A similar analysis of the term evidence in this context has been made elsewhere In England and Wales a flexibility in the concept of evidence in this type of context has been accepted The analysis arises in the context of a scheme for mutual assistance It includes material which may not ultimately be evidence at a trial This purposive approach is consistent with the Convention and Protocol In considering this approach in R v Secretary of State for the Home Department ex p Fininvest Spa 1997 1 W L R 743 at p 752 Simon Brown LJ stated it was not until the Act of 1990 that a provision was made for obtaining evidence in connection with a criminal investigation providing only as section 4 makes plain that the Home Secretary is satisfied both that an investigation into a particular offence is being carried on and that there are reasonable grounds for suspecting that it has been committed Inevitably there is some flexibility in the whole concept of evidence not even the applicants submit for example that what may be sought under the Act of 1990 must be likely to be material evidence within the meaning of section 97 1 of the Magistrates Courts Act 1980 as explained in Reg v Reading Justices Ex parte Berkshire County Council 1996 1 Cr App R 239 When therefore one is speaking of evidence in the context of a criminal investigation the permissible area of search must inevitably be wider once that investigation is complete and the prosecution s concern is rather to prove an already investigated and instituted offence The Criminal Justice International Co operation Act 1990 in short created a wholly new scheme for mutual assistance with regard to criminal investigations a scheme under which it would plainly be necessary to examine altogether more material than would ultimately constitute evidence at any trial True the word evidence continues to be used but Parliament cannot thereby have intended to confine assistance within the relatively narrow limits prescribed by the Westinghouse case and in re State of Norway s Application That in effect would be to defeat the very change being brought about by the Act of 1990 The terms of article 1 of the 1959 Convention should in this regard be noted 1 The contracting parties undertake to afford each other in accordance with the provisions of this Convention the widest measure of mutual assistance in proceedings in respect of offences the punishment of which at the time of the request for assistance falls within the jurisdiction of the judicial authorities of the requesting party In my judgment that consideration of itself is sufficient to defeat the applicants central contentions here with regard to the width of disclosure sought in this case I would adopt and apply this analysis of the word evidence There needs to be a degree of flexibility in the concept of the term evidence under the Convention and our domestic legislation While the cases of England and Wales are not binding authority for our analysis as they are based also on the same Convention their approach referring to the Convention is of assistance I am satisfied that the Oireachtas cannot have intended a narrow definition of the term evidence I too note the words of Article 1 of the Convention and especially the widest measure of mutual assistance 19 Investigation The request in this case has been made in relation to a criminal investigation being conducted in England where certain allegations are under investigation The police in England request that enquiries be made in Ireland see Letter of Request 20th December 2001 The applicant has not been charged with any offence No trial proceedings have been commenced The request relates only to the investigatory stage of a criminal process I am satisfied that it would not be appropriate to address in this case a hypothetical situation where evidence would be sought for criminal proceedings that is not this request I leave over to an appropriate case where evidence for criminal proceedings in a requesting state is in issue considerations relevant to such a request In this case the Minister is specifically requested to assist in investigations Should there be an issue of evidence at a trial in England at a later date then further steps would be required There is nothing in the circumstances of this request which indicates that the fundamental rights of the applicant will be impinged in any way 20 Minister satisfied to assist regarding certain items The Minister was satisfied that an offence had been committed and that an investigation into that offence was being carried out The Minister decided to utilize s 51 of the Act of 1994 to assist on items 3 4 6 8 and 9 referred to in the Letter of Request 20th December 2001 These were a To arrange for the applicant to be medically examined for any injuries he may have sustained during the incident b A current photograph of the applicant c A set of fingerprints of the applicant d All clothing of the applicant secure so as to allow for subsequent forensic examination of the clothing by forensic scientists and e Any subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing details relating to usage of the mobile phone for the period from 23rd November 2001 to 19th December 2001 20 1 Items in issue These are the matters originally sought and which were originally in issue on this appeal However as is referred to elsewhere in this judgment the Minister withdrew a the medial evidence from the proposed assistance and indicated that it would not be the object of any assistance to England Thus at issue are the photograph fingerprints clothing and mobile phone details 21 Nomination The Minister having originally formed the view that items 3 4 6 8 and 9 referred to in the Letter of Request could be proceeded with by way of application under s 51 of the Act of 1994 he so informed the Judicial Co operation unit of the United Kingdom Central Authority in Criminal Matters and in accordance with s 51 2 of the Act of 1994 the first named respondent was nominated To receive such of the evidence to which the above request relates as may appear to the Judge to be appropriate for giving effect to the request In accordance with paragraphs 4 1 and 2 of the Second Schedule to the Act of 1994 it was requested that the evidence be furnished to the Department for transmission to the U K Authorities 22 Section 51 Process The first named respondent had legal authority under s 51 of the Act of 1994 to proceed however the process under s 51 of the Act of 1994 is limited The nominated person may receive such of the evidence to which the request relates s 51 2 b It is not a wide ranging investigative role The designated person is not an investigating judge Within the terms of the request and the items referred to the delegated person the first named respondent is required to receive such of the evidence to which the request relates as may appear to him to be appropriate for the purpose of giving effect to the request Thus the s 51 procedure is a statutory procedure not a trial It is a process consistent with international principles as to mutual assistance between States 23 Confusion It is within this legal context that the request was received for mutual assistance The one thing that is crystal clear in this case is that there has been considerable confusion There was confusion during the hearing before the first named respondent The hearing had the trappings of a court proceedings yet it is not The documents prior to and resulting from the hearing have the appearance of District Court documents yet it is not a District Court hearing Indeed the general confusion continued even before this Court on certain matters notably the medical evidence This confusion has made the case appear more complex 24 Court Trappings The application pursuant to s 51 of the Act of 1994 proceeded with many of the trappings of a court hearing This was erroneous For example the decision of the first named respondent had at the top left hand corner of the sheet of paper the following Judge Haughton Court No 50 Richmond Courthouse Mutual Assistance Application Then set out were the words The Prosecutor The Director of Public Prosecutions at the suit of Underneath appear the words Accused Jason Brady In the body of the decision all of which appears under a heading Courts Act 1971 Section 14 Certified Copy of Order It is stated On the 25th day of March 2002 at the sitting of the Metropolitan District Court at District Court No 50 Richmond Courthouse North Brunswick Street Dublin 7 before one of the Judges of the said District Court assigned to the said District an order was made to hand over all items in Police Property application other than rings and photo albums Items to be transferred to investigating authorities including roll of film and fingerprints and photograph of Mr Brady The process was held in a courtroom in a court building yet it was not a court hearing No explanation was given that it was not a court hearing The documents incorrectly have the trappings of a court hearing For example a Witness Summons was headed The District Court and the decision was headed The District Court Evidence was given on oath with no explanation that it was not a court hearing The whole process was such that it had the appearance of a District Court hearing which was incorrect A lay person for example a doctor requested to give evidence may well have assumed it was a court hearing These problems may have arisen because of the complexity of fitting into a common law system a procedure more akin to a civil law system where for example there may be a judicial officer who investigates a crime However under our legal system this is a special statutory process established under s 51 of the Act of 1994 25 Notice The fundamental issue raised by the applicant is that he was not given notice of the application under s 51 of the Act of 1994 The Letter of Request stated that it was accepted and desired that the applicant should be given the opportunity of seeking legal advice from a lawyer who could advise him on the position in the English and Irish criminal jurisdictions However the issue of whether or not the applicant is entitled to notice of such an application must be determined under Irish Law and irrespective of any such reference in the Letter of Request The statement as to legal advice was made in the context of a request for assistance on thirteen matters five only of which the Minister was satisfied to send to the nominated person and one more of which was then excluded by the Minister on this appeal Further in relation to some of the inquires it was stated that it was accepted that the plaintiff could only be invited to co operate As I have already pointed out this request relates to the investigative stage of the criminal process the initial stages of the criminal process At this stage of the criminal process if enquiries were being made in Ireland the Garda Síochána would give no notice to the applicant of any assistance being given between different branches of the Garda Síochána It is not common practice nor is it required under the Constitution that a party be given notice of ongoing Garda investigations Under the Convention it is proposed that mutual assistance be enabled between police authorities of the different States While respecting the rights of the individual under investigation it is anticipated that one police force will assist another The type of assistance will depend on the circumstances of each case There may be the formal procedure of extradition and the appropriate statutory procedure will be applied There may be procedure under the European Arrest Warrant Act 2003 Or as here there may be a request for mutual assistance by the provisions of documents This type of request for assistance may also vary Thus it may as here be at the initial stage of an inquiry at the investigation stage or it may be a request when criminal proceedings have been instituted In each case a balance has to be achieved This balance is achieved through safeguards at several levels I have set out previously the safeguards under the procedure of the Act of 1994 I am satisfied that prima facie the applicant is not entitled to notice of a request for mutual assistance at the investigative stage of criminal proceedings There may well be exceptions but in general at the investigative stage of the criminal process the Garda Síochána are not required to inform a suspect of on going enquiries in Ireland or elsewhere and a similar approach applies to a request such as is in issue here On behalf of the applicant it was submitted that as a matter of principle that notice is required to be given of assistance such as is proposed in this case I am satisfied that no such general principle exists It was open to the applicant to prove exceptional circumstances which would require him to be given notice but this was not done nor would it appear relevant in this case There are no exceptional circumstances such as to make the applicant an exception to the general rule Consequently I would dismiss the applicant s appeal on this ground in relation to the photograph the set of prints and the clothing The medical examination documents have already been excluded The only remaining category is the mobile phone details The request was for subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing details relating to usage of the mobile phone during the period 23rd November 2001 to 19th December 2001 Under the statute the first named respondent is required to receive the items of evidence to which the request relates While he is given some discretion to receive such of the evidence to which the request relates as may appear to our appropriate for the purpose of

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  • that the indications were that the section had been implied without prior reflection as to precisely what was entailed how the persons called upon to act should carry out their functions and the precise parameters of the procedures to be followed I am in entire agreement with these remarks as indeed I am with the particular criticisms of the procedure employed in this case set out by Mr Justice Hardiman in his judgment At an earlier point in his judgment the Chief Justice emphasised the need to approach the interpretation of the relevant sections from a perspective broader than the circumstances of an individual case It is precisely because this is so that I am here laying stress on the fact that many of the difficulties in the present case arose from the failure to apply correctly the procedures laid down in the statute and in the Convention It is greatly to be hoped that these difficulties will not recur in future cases In this context it is also difficult to understand why the authorities in this jurisdiction failed to take notice of the expressed wish of the United Kingdom authorities as set out in their letter of request that the applicant should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise on the position in both English and Irish criminal jurisdictions insofar as they are applicable This expressed wish cannot of course be binding on any or all of the respondents It is however carefully worded and it seems likely to be of significance It appears that for some unexplained reason this request was never even considered by the Irish authorities from beginning to end of the procedure This too greatly contributed to the difficulties which arose in the case I share the view of Mr Justice Hardiman in doubting that the evidence to be collected and transferred in this particular case was necessarily only for the purposes of an investigation and in this aspect of the case I respectfully disagree with the Chief Justice I do so for two main reasons In the first place in common with both my learned colleagues I do not find it credible that the statement concerning the necessity for a proper chain of evidence made by counsel for the third named respondent at the hearing before the first named respondent was as this court was informed a mistake Counsel at the hearing stated that his concern was to ensure the chain of evidence and specifically stated that some of this evidence may form part of the prosecution evidence in the United Kingdom in order to ensure the integrity of the chain that the documentation on the items transferred are given in some sense directly to the English authorities This court was given no explanation of the nature of this alleged mistake or how it arose At the hearing before the first named respondent it was made clear that the counsel concerned was acting on

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  • that the relevant material might form part of the prosecution evidence against the appellant in England and therefore that it was necessary to ensure the chain of evidence It was not therefore required solely for investigative purposes Another feature worth noting is that the first named respondent enquired whether there was a solicitor acting for the applicant in the police property application The guard said that there was not a solicitor acting in relation to that application that it appeared to be a personal application He did however say that a named solicitor had acted for him on the criminal aspects However in the affidavit of the applicant s solicitor he said that his firm was instructed in January 2002 to seek the return of the clothing which had been taken from him Legal framework The hearing just described took place pursuant to s 51 of the Criminal Justice Act 1994 This provides Taking of evidence in State for use outside State 51 1 This section shall have effect where the Minister receives a from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory or b from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted or a criminal investigation that is being carried on in that country or territory 2 If the Minister is satisfied a that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and b that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there he may if he thinks fit by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request 3 For the purpose of satisfying himself as to the matters mentioned in subsection 2 a and b of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate 4 In this section evidence includes documents and other articles 5 The Minister shall not exercise the power conferred on him by subsection 2 of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority therof that any evidence that may be furnished in response to the request will not without his consent be used for any purpose other than that specified in the request 6 The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection 2 of this section 7 8 9 The second schedule referred to provides in part 1 The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that Court 2 The judge may in the proceedings take evidence on oath and may administer an oath for that purpose The schedule further provides in part 4 1 The evidence received by the judge shall be furnished to the Minister for transmission to the court tribunal or authority that made the request Knowledge of the applicant No attempt was made to notify the applicant of the hearing pursuant to s 51 and accordingly there was no question of his being able to take legal advice in relation to it He did however become aware that some proceeding was in being because he was informed by his sister of the service of the summonses on her and on his brother in law He spoke to his sister by phone and offered the opinion that as far as he knew she and her husband did not have to answer any questions of the sort indicated He also asked his solicitor to secure representation for his sister and brother in law They called to the applicant s solicitor office on the morning of the hearing The solicitor considered that there appeared to be a potential conflict of interest in his representing them The solicitor also made enquiries and discovered that there was no application listed at 10 30am on the 25th March 2002 In fact the witness summonses to the sister and her husband inaccurately required their attendance on the 25th March 2000 at 10 30am In any event these parties did not attend at the hearing The applicant said that when he heard of the service of summonses on his sister and brother in law he formed the view that they were suspected of harbouring him while unlawfully at large Subsequent developments In the course of the hearing of the appeal there was considerable discussion about the medical records The point was made that the request did not extend to the medical records and that the records in question which were the totality of the records available to Dr Browne clearly related to matters which could have no possible evidential significance and were prima facie confidential In fact the interest of the English authorities in the medical condition of the applicant was limited to the question of whether he had any injury when seen by the prison doctor in Dublin and presumably arose on the basis that they were keen to know whether he had any injury consistent with the struggle which had taken place in Birmingham A number of points were agitated before us as to the status of the first named respondent s order in relation to the medical records and as to how such status might impact on the question of whether the hearing under s 51 was or was not a judicial hearing Counsel for the respondents asked to be allowed to address this question after the luncheon adjournment At that time he stated that the authorities would not seek to transmit the medical records to the United Kingdom It further transpired that when the applicant s police property application came on for hearing before the President of the District Court on the 26th March 2002 the Court was made aware of the events of the previous day The President made an order on the application of counsel for the applicant that the items the subject of the application be retained in garda custody pending further order of the District Court Potential use of the relevant material We have already seen that at the hearing before the first named respondent counsel for the third named respondent envisaged at least the possibility that the material to which the application related might form part of the evidence against the applicant in a trial in England The attitude of counsel for the second and third named respondent to this area of the case was a very nuanced and it may be an internally contradictory one He said with emphasis that the statement quoted above was a mistake the uninformative nature of his indication to this effect has already been noted Counsel also objected with at least equal vehemence to any submission based on the proposition that the material in question would or might form part of the prosecution evidence in the United Kingdom or that it was possible as a matter of English law that this might happen English law he said was a matter of fact for the purposes of a hearing before our courts and would require to be established in evidence by an expert In my view it is asking a great deal of the Court on the one hand to accept without being provided with any details that the unambiguous statement of counsel for the first named respondent was a mistake and on the other to decline to consider at all even whether it is possible that the relevant material might be used in evidence in the United Kingdom It is only fair to point out that if mistake there were it was not the mistake of the solicitor or counsel engaged on behalf of the authorities before the first named respondent Counsel merely mentioned on direct instructions his solicitor s concern that the order of the first named respondent be such as would preserve the chain of evidence for possible use in a prosecution in the United Kingdom It is impossible to see why the solicitor would have raised that concern other than on the basis that his then instructions were that regard should be had to preserving the chain of evidence for a possible trial in the United Kingdom Of course those instructions may have been given in error those instructing him might have misapprehended the purpose of one or other of the letters of request or there might have been a breakdown in communication with the English Crown Prosecutions Service But nothing of the sort has been established in evidence or made the subject of submissions Equally this Court is well used to the consideration of English authorities and English statutes Indeed the principal authority relied upon by the respondent on the hearing of this appeal was R v Secretary of State for the Home Department ex parte Fininvest SpA 1997 1 WLR 743 a decision of the English Court of Appeal in relation to a wide ranging series of challenges directed at the implementation by the United Kingdom authorities of an Italian letter of request In these circumstances I do not consider that it would be either fair or realistic to fail to address the alleged potential for the material gathered as a result of the s 51 hearing or the material sought to be gathered by oral examination of the applicant s sister and brother in law to be used in evidence in the United Kingdom Certainly it would not be possible for this Court to decide authoritatively whether or not such material could be used But it is perfectly reasonable and indeed essential in the interest of justice to address whether there was an intention to produce the relevant material in usable form thus allowing for its potential use I do not believe that the second and third named respondents can so to speak have it both ways by dismissing the statement made on their behalf before the first named respondent as a mistake of unexplained causation while refraining from making any statement as to what the true position is and submitting that the applicant s failure to produce expert English evidence debars him from raising the question It should be remembered that the applicant was not put on notice of the proceedings before the first named respondent was not contrary to the terms of the first letter of request permitted to take legal advice on the question of the request from the United Kingdom Authorities and indeed has never been told precisely what was afoot between those authorities and the second and third named respondents here in so far as it concerned him Legal aspects of the Convention regime It will first be noted that the obligation which this State has assumed under the Convention is an obligation to execute any letters rogatory in the manner provided for by Irish law Article 3 The relevant statute law is the Act of 1994 It will be seen in s 51 that a hearing under that Section is to be conducted by a judge of the District Court nominated by the Minister and who has the duty to receive such of the evidence to which the request relates as may appear to the Judge to be appropriate for the purpose of giving effect to the request It does not appear to me that a judge of the District Court discharging this duty is sitting as such judge No doubt he is bound to act judicially but his status as a judge seems to me to be merely a condition of eligibility for nomination Counsel for the authorities submitted that the first named respondent was sitting not as a judge but merely as a persona designata I agree with this Secondly it appears to me that the persona designata is limited to the statutory function of receiving such of the evidence to which the request relates as may appear to be appropriate for the purpose of giving effect to the request This in turn has the consequence that the evidential material received cannot extend to material which is outside the scope of the request This is of relevance here because for example both the medical records and the mobile phone appear to be entirely outside any possible reading of the terms of the request The submission on behalf of the third named respondent fortunately irrelevant in the event that rings constituted clothing needs no comment here Looking further at the Act of 1994 one sees that s 52 makes provision for the obtaining of evidence outside the State for use in the State Subsection 6 provides Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection 3 b of this Section be used for any purpose other than specified in the letter and when any document or other articles obtained pursuant to a letter of request is no longer required for that purpose it shall be returned to such authority Subsection 7 provides A statement of evidence of a witness taken in compliance with the letter of request and certified by or on behalf of the Court Tribunal or authority by which it was taken to be a true and accurate statement of the evidence so taken shall be admissible in the proceedings concerned as evidence of any facts stated therein of which evidence would be admissible in those proceedings Subsection 10 provides In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the exercise of the Court s discretion to exclude evidence otherwise admissible the Court shall have regard paragraph a to whether it was possible to challenge the statement by questioning the person who made it and paragraph b if the statement was taken in the country or territory in question to whether the law of that country or territory allowed the parties to proceedings to be legally represented when the evidence was being taken Position in the United Kingdom The artificiality of certain of the submissions made on behalf of the authorities is in my view demonstrated by a consideration of the Criminal Justice International Co operation Act 1990 the relevant United Kingdom legislation at the time of the requests Section 3 7 is in terms absolutely identical to s 52 6 of the Irish Statute apart from the number of the subsection quoted Section 3 8 is in terms substantially identical to s 52 10 of the Irish Statute The variations are the United Kingdom Courts discretion to exclude evidence is described by reference to a statutory power s 25 of the Criminal Justice Act 1988 This could not be done in this jurisdiction because there is no such statute In subparagraph b of the English subsection the Court is required to consider whether the local law allowed the parties to proceedings to be legally represented when the evidence was taken as opposed to the Irish subparagraph which requires the Court to have regard to whether the law of that country or territory allowed the parties to the proceedings to be legally represented when the evidence was being taken Having regard to this enormous similarity in the substance of the statutory provision and its phraseology to the common law heritage shared by Great Britain and Ireland to our mutual adherence to the European Convention on Human Rights to the fact that the Irish draftsman plainly had regard to the English Act and to the fact that we are daily invited to consider English judgments as we were by the respondents in the present case it is in my view reasonable to conclude unless the possibility is specifically negatived in a letter of request that evidence gathered on foot of a request from the United Kingdom may be used in evidence in criminal proceedings in that jurisdiction The evidence which may be open to being used in this way includes the recorded version of oral testimony documents and items of real evidence The artificiality of the Authorities position is further underlined by the fact that in Fininvest cited above upon which their submissions were in part based the English Statute of 1990 is thoroughly discussed and extracts from it set out It would clearly be an exercise in futility to bring this foreign authority to our attention if it was not felt that the Court without the assistance of expert evidence for neither party adduced any could sufficiently construe the U K statute to make sense of the findings on which these respondents seek to rely The Authorities are perfectly correct in that expectation For the same reasons and to the same extent I feel quite able to look to the English statute on admissibility of evidence gathered under a letter of request not authoritatively to construe it but to form a view of what may occur under it of relevance to the Irish proceedings impugned in this action The artificiality of these respondents stance on the inability of the Court to consider the English regime is further illustrated by the contents of the supplemental affidavit of Mr James Clerkin an Assistant Principal Officer of the Department of Justice sworn in this matter on the 29th April 2002 There is no suggestion that Mr Clerkin is an English qualified lawyer or an expert of any kind Nevertheless he purports at paragraphs 11 12 to state that the Act of 1994 incorporates into Irish law the provisions of the European Convention on mutual assistance in criminal matters and to other International Conventions He then says that Ireland is bound by the International Conventions to execute requests for assistance to the fullest possible extent He goes on to express the view That it sic both Irish and United Kingdom jurisdictions included in their legislation incorporating international mutual assistance provisions that Articles gathered in such request can only be used for the purpose specified Apart from the imbalance in light of the opinion on matters of law proffered on a layman s affidavit of contending that the Court and the applicant are inhibited from considering foreign law in the absence of expert evidence but that the respondents may offer an opinion on it it appears from these passages of Mr Clerkin s affidavit that it is the respondents case that both the Irish and the United Kingdom statutes incorporate into law for their respective territories the International Conventions referred to This view of the Irish and United Kingdom legislation coupled with the marked similarity of phraseology in the relevant sections in my view emphasise just how unreal it would be to pay no attention to the United Kingdom statute We must of course avoid anything which purports to be an authoritative construction of it Significance of the request and Section 51 proceedings It appears to me that the fact that so much and such intense argument was directed to a submission that the Court should pay no attention to the possible use in the United Kingdom of the material to which the s 51 application related is in itself significant Having surveyed that legislation and in particular the relevant subsections corresponding to the Irish s 52 it is possible to make certain further observations If it is legitimate to proceed with an application under s 51 without making a person in the position of the applicant aware of that fact then obviously such a person cannot challenge the statement by questioning the person who made it to quote s 3 8 a of the United Kingdom Act and s 52 10 a of our Act which are in identical terms Equally it would seem to follow that the local law did not allow the applicant to be legally represented when the evidence was being taken since as he was not put on notice of the application he naturally could not obtain legal representation at it or take advice on it It will be further noted that an English court like an Irish court is obliged merely to have regard to these matters in neither country does the statute require the exclusion of evidence in the circumstances noted Of course it may be of the greatest relevance in a particular case that both the United Kingdom and Ireland are signatories to the European Convention on Human Rights which provides at Article 6 3 d 3 Everyone charged with a criminal offence has following minimum rights d To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him The evidence proposed to be taken Judging from the witness summonses and leaving out of account for the moment the items of real evidence it appears that it was desired to examine the doctor a man from a mobile telephone company and the sister and brother in law of the accused as to his movements and the other matters indicated It is most important to note that no suggestion was made in the High Court or in this Court that it would have been impossible or counter productive to put the applicant on notice of the fact that it was proposed to examine these witnesses about the topic mentioned on the witness summonses He was in custody The witnesses themselves were given about one week s notice of the matters on which they were intended to be examined it follows that there was no extreme urgency which made notification of the applicant impossible In the case of each witness there existed the possibility at least that his testimony might be sought to be admitted in evidence in the United Kingdom no court in this country can form a proper view on how likely or otherwise it is that the testimony would in fact be admitted Having looked at the English statutes it appears that the desire of the English authorities that the applicant should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions in so far as they are applicable may be in part attributable to the matters to which the English court must have regard where a question of admissibility arises It would of course be unfair to conclude that this desire may not also be attributable to a simple wish very creditable in a public authority to vindicate the applicant s human rights But the relevance of the passage for present purposes is that if the applicant were to be permitted to take legal advice about both Irish and English criminal law he would of course have to be told what was afoot The English authorities clearly had no objection to this and in fact wished it to be done Their request was ignored In my view the submission of the authorities on this aspect too is a highly artificial one It was submitted that the desire to have the applicant permitted to take legal advice expressed by the English authorities must be viewed as applying only to the first request which did not envisage an application under s 51 and not the second one which did This is plainly a fatuous distinction On the first request the applicant was being asked only to make voluntary disclosures or to permit voluntarily the taking of evidential material Between that date and the U K authority s letter of the 21st February 2002 it appears that the Irish authorities with or without requests decided to proceed by way of s 51 Under these provisions efforts were to be made to establish his movements any conversations he may have had with certain persons his telephone records and to get his medical records from Dr Browne In my view in principle the taking of such evidence in the circumstances envisaged in the Statute is in my opinion sufficient to constitute the applicant as a party because his conduct has become the subject matter of the Committee s inquiry or examination by reason of the charges which have been levelled against him to quote the phrase of Ó Dálaigh C J in Re Haughey 1971 IR 217 at 263 In my view there is a sufficient analogy with the circumstances of that case to allow the phrase quoted with the necessary incidental amendments to apply One need only read the produced portion of the two letters of request to see the grave suspicion to which the applicant was subject His conduct inter alia had indeed become the subject of the first named Respondents inquiry or examination by reason of those suspicions The foregoing in my view represents the position in principle I am far from holding that if circumstances of urgency reasonably apprehended destruction of evidence or intimidation of witnesses required it evidence might not be taken without notification After all evidential material is frequently taken without notification in the execution of a warrant But that is done in the confidence that in the event of the seized material becoming evidentially significant its admissibility will be decided by our courts on known principles which respect the constitutional rights of the accused Equally the law provides examples of the seizure of materials for evidential purposes on notice to the person holding them see Haughey v Moriarity 1999 3 IR 1 In that case orders in the nature of discovery orders had been issued against a number of individuals bankers without notice to them Hamilton C J said Fair procedures require that before making such orders particularly orders in the nature of the orders made in this case the person or persons likely to be affected thereby should be given notice by the tribunal of its intention to make such order and should have been afforded the opportunity prior to the making of such order of making representations with regard thereto Such representations could conceivably involve the submission to the tribunal that the said orders were not necessary for the purpose of the functions of the tribunal that they were too wide and extensive having regard to the terms of reference of the tribunal and any other relevant matters The Court is satisfied that the trial judge was correct in his findings that the order sought to be impugned herein made by the tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by the tribunal in the making of such orders There may be exceptional circumstances such as the legitimate fear of destruction if prior notice was given where the requirements of fair procedures in this regard may be dispensed with No such circumstances exist in this case I believe that this passage in principle applies to the present case as well It is manifest and indeed now conceded that valid submissions could have been made apart from anything else relating to the scope of the orders There is no possible mandate in law for the transmission of the entire medical records nor were they requested by the English authorities Equally there is no mandate in law for the transmission of the mobile phone which equally was not requested by the English authorities These items were ordered to be delivered in what can only be described as a burst of excessive enthusiasm In the case of the medical records this action in my view constituted an unwarrantable breach of the applicant s entitlement to privacy in his dealings with the doctor who treated him with no corresponding benefit either in the investigation of crime or otherwise It did not even have the colour of a request by the authorities in another country Nature of proceedings In making the comment in the preceding paragraph I intend no criticism of Dr Browne This gentleman like the other witnesses was summoned to a hearing in a court room described as such by a judge of the District Court and before a judge of the District Court He was then asked for the medical records by a barrister acting as such and instructed by the Chief State Solicitor before a person who was a judge of the District Court who did not intervene in the process He was therefore entitled in my view to assume that the records were required for some lawful purpose and that his parting with them was judicially sanctioned In my view the nature of the proceedings envisaged by s 51 render it necessary that any person and especially a person invited to breach his obligations of confidentiality to another be informed that appearances to the contrary he is not before a court and that the person presiding is not doing so as a judge or with the authority of a judge If this were explained to a medical practitioner asked in the absence of his patient s consent to disclose the latter s records the probable result is that he would wish to take the advice of his professional body which would almost certainly lead to his taking legal advice In the present case even a superficial legal scrutiny would have led to his being alerted to the fact that the letter of request did not extend to a request for a totality of the medical records Apart from any other point that might be urged against disclosure there was in my view no power whatever in the persona designata to mandate the handing over of these records outside the terms of the letter of request Criticism of proceedings The applicant strongly contends that he was entitled to notice of proceedings in which according to the facts as they were at the time of the issue of the witness summonses a doctor who had treated him a man who could give evidence about the use of a mobile phone linked to him and his brother and sister in law who or so the authorities hoped could give evidence about his movements were to be examined in circumstances where the contents of their examination might become evidence against him abroad He also contends that he was entitled to such notice before the first named respondent sent to the third named respondent for the purpose of transmission outside the country items of real evidence which were his property He says that the failure to give him such notice was in effect a denial of his right to take legal advice or to be legally represented He relies on the fact that the English authorities in making their request asked that he be permitted to take advice Certainly this is irrefutable evidence that they saw no practical reason why he should not be put on notice The applicant also claims that the arranging of the s 51 hearing for the day before the police property application at which he was the moving party and would certainly have been present or represented was an attempt to interfere with his access to the Courts in relation to the real property in question and to circumvent the power of the District Court in favour of that a district judge sitting as persona designata according to the authorities with a very circumscribed discretion Response to criticisms The respondents say first of all that the proceedings under s 51 before the first named respondent were not conducted by him sitting as a judge I have already indicated that I agree with this They go on to say such proceedings are in aid of a criminal investigation in another country and there is no question of the applicant requiring to be put on notice of them much less to be permitted to take legal advice Indeed it is said it would be positively counterproductive if this were the case It is not the law that a murder investigation either here or abroad must run the risk of being compromised by a claim of breach of privacy If a suspect must be involved in the information gathering aspect of a murder investigation as claimed by the appellant in these proceedings the bringing to justice of such suspect must be rendered considerably less likely As noted above it was vehemently and repeatedly insisted upon by the respondents that it is quite impossible for the Court to consider any suggestion that evidence gathered pursuant to s 51 may be used as part of the evidence against the applicant in the United Kingdom The indication to the contrary in the course of the hearing before the first named respondent is dismissed as a mistake and the absence of expert evidence on the prospect of using the material in evidence in a prosecution in the United Kingdom is said to be fatal Preliminary conclusions I would first of all reject two of the submissions made one on each side I am not satisfied on the evidence that there is any support for the view that the proceedings under s 51 were meant to forestall or frustrate the applicant s police property application I fully accept that it is coincidental in a high degree that a return date for the former was sought the day before the date fixed about six or seven weeks previously for hearing of the latter application It is also remarkable that the relevant member of An Garda Síochána was aware of the date fixed for the police property application for about six weeks whereas the gentleman in charge of proceedings in the Department of Justice remained in ignorance of this for most of that time But the affidavits filed on behalf of the respondents disclaim any such intention and give an explanation which though relying on a high degree of coincidence is by no means impossible In those circumstances it seems to me that if the applicant wished to take this aspect of the matter any further he should have done so by way of cross examination of the deponents it is not a matter that can be resolved by the exchange of affidavits This being so and in view of the onus of proof resting on the applicant I would not grant him relief on this basis I now turn to the question of whether the intended or possible use in evidence of the oral written or real evidence solicited under s 51 is a matter which may be considered by the Court I have already said that I regard the respondents contentions in this matter as highly artificial The fact is that an unambiguous statement in relation to the prospect of their being used in evidence was made by counsel on behalf of the third named respondent This was not done on his own initiative but on instructions What counsel said is recorded in a transcript which the respondents have produced It is not possible in my view to dismiss this indication as a mistake in the totally uninformative manner chronicled above The respondents seek to go further having got counsel s indication out of the way they hope in the manner described they proceed on the basis that there is no evidence as to

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