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  • is necessary to look more closely at the decision invoked Redmond v Flood supra involved a challenge brought in the early days of the life of this same Tribunal to the manner in which the Tribunal was then proceeding Mr Redmond had sought leave to issue judicial review proceedings Leave was granted however only in relation to a limited number of grounds being those concerning fair procedures in relation to the public hearing not relevant in this appeal That aspect of the case is not relevant to this appeal It was on the other hand refused by the High Court in relation to those concerning the interpretation by the Tribunal of its Terms of Reference Since the appeal was against the refusal of leave on the latter issue the hearing in this Court was ex parte pursuant to the Rules of the Superior Courts and this Court dismissed Mr Redmond s application Even from the above account it is clear that the argument on which the Tribunal now relies in this case was by no means to the forefront of the decision of this Court in Redmond However as is pointed out by counsel for the Tribunal correctly among the grounds alleged in the Redmond case was that the Tribunal under its Terms of Reference if it conducted a private investigation could then conduct a full public inquiry once it determined that sufficient evidence exists in relation to that matter to warrant proceeding to a full public inquiry in relation thereto It had been contended by Mr Redmond that he was entitled to an opportunity to make representations in relation to the evidence available to the tribunal before the tribunal reaches a determination as to the sufficiency of the evidence emphasis added Hamilton C J observed that fair procedures and the principles of constitutional justice did not require that the proceedings of the tribunal be conducted in private at all Indeed it was the essence of such inquiries he noted that they be held in public for the purposes of allaying the public disquiet that led to their very establishment Clearly there can be no challenge to the well foundedness of these observations as to tribunals such as the present Tribunal the subject of the observations This point was dealt with in the following paragraph of the judgment An inquiry under the Tribunals of Inquiry Evidence Act 1921 is a public inquiry The Court in the passage quoted accepted that it was proper for a tribunal to hold preliminary investigations in private This would enable the Tribunal inter alia to check on the substance of the allegations and in this way would protect the citizens against having groundless allegations made against them in public But the Court was not suggesting that the tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry The Tribunal is not obliged to hold a private inquiry before proceeding with its public inquiry The allegations made against the applicant in this case could be false At this stage we simply do not know But they are grounded on a sworn affidavit In these circumstances it appears to this Court that the Tribunal was entitled to decide that they were of sufficient substance to warrant investigation at a public inquiry Indeed it would have been surprising if the Tribunal had decided otherwise This being so this Court cannot see any basis on which it could grant leave to apply for judicial review on this particular ground The Court also observed that the fundamental nature of a tribunal of inquiry was to hold public hearings If a public hearing was held without any preceding private inquiry that would be perfectly lawful This Court accepted that there was simply no other reasonable conclusion open to the Tribunal in that case however but that the allegations made on sworn affidavits against Mr Redmond were of sufficient substance to warrant a public inquiry The extract makes it clear that this Court did not deal with the claim that there was an entitlement to make representations and submissions on the decision itself and it is not evident that that point was even advanced or relied on in argument This is particularly clear when it is recalled that what was being sought was an opportunity to make representation as to the sufficiency of the evidence prior to the Tribunal reaching a decision Redmond is therefore far from an authority for the broad proposition for which the Tribunal now contends but which in any event was not the basis originally invoked for the impugned decision The argument advanced on behalf of the Tribunal in this appeal wrongly in this Court s view is that its starting point is to characterise the decision to be made in the exercise of its discretion under the resolutions of the Houses of the Oireachtas of the 17th November 2004 as essentially the same as that which was at issue in Redmond That does not appear to be so What was involved in Redmond was a well recognised decision such as those made by prosecutorial or investigative agencies that there was sufficient evidence to warrant commencing proceedings or in that case at least hearings in public a decision which has never been the subject of judicial review The decision challenged in Redmond v Flood that is whether to move from private to public hearings on the basis of its assessment of the evidence was one which belongs to a limited class of decisions under administrative law which cannot normally be challenged by way of judicial review It cannot be said as a general rule of administrative law that before a public authority or body commences proceedings against an individual it must always or necessarily give that individual an opportunity to make submissions as to why proceedings should not be initiated The individual s rights are in general adequately or even fully protected by any hearing that is subsequently afforded to him See Redmond v Flood supra and Wiseman v Borneman 1971 A C 297 On the other hand the decision to be made by the Tribunal in the present case was significantly different it being both broader and deeper both as to the decision itself and the criteria by which it was to be made It was not simply whether to proceed from private to public hearings as the Court in Redmond observed a low threshold for the Tribunal in the case of a public enquiry and did not involve any consideration of the sufficiency of evidence itself essentially a matter of judgment for the investigators which the applicant in Redmond sought to do Rather it was whether to commence or to proceed any further with any particular investigation at all Furthermore the very basis upon which this Tribunal was to be entitled to make any such decision was also quite different to that which arose in Redmond There is no question here of sufficiency of evidence Instead there are a series of criteria set out in the Amended Terms of Reference which are open ended and contestable These are factors in respect of which interested parties might be able to make helpful submissions not by way of analysis of allegations or the sufficiency of evidence but in relation to the criteria specifically referred to in the Amended Terms of Reference such as age state of health of persons likely to be important or essential witnesses and their likely age or state of health at such time in the future when the matter might proceed to public hearing and the likely length and even the cost the benefit or the utility of such hearings As mentioned above they are not criteria which on their face are included in the amended Terms of Reference for the exclusive benefit of the Tribunal even if it is the Tribunal which exercises the eventual discretion There is therefore a material distinction between both the issues and the findings in Redmond v Flood and the decision in issue in this appeal They cannot be characterised as essentially the same decision or even as analogous decisions These distinctions are critical A further distinction between the decision at issue in Redmond and that at issue in this appeal is that the only consequence for Mr Redmond if the tribunal determined that there was sufficient evidence to warrant public hearings was a public hearing at which his rights would be fully protected and in which he could demonstrate not only that there was insufficient evidence but that the evidence actually established did not justify any finding against him In that sense a decision on the prima facie case which he was seeking to challenge was not at all determinative It was simply part of a process which necessarily involved a full public hearing at which his rights are fully protected by the procedures required by natural justice As well as being the law this is also common sense In the present appeal however the decision made by the Tribunal in the exercise of its discretion is a once and for all decision and is final It will not and cannot be revisited or remedied in any way by public hearings of the Tribunal In such circumstances it seems plain that an affected party ought to have the opportunity of addressing the Tribunal at least in some form on the decision which it is about to make The suggestion on the part of the Tribunal that its stance has always been consistent is correct but nevertheless erroneous On the question of the discretion to be exercised it is said that this only exists at least for present purposes where there has been no decision to move from private investigative stage to public enquiries by way of hearing and this could not in any event arise on the facts of this appeal A reading of the amended Terms of Reference does not appear to support such a narrow interpretation when all the terms are read together Moreover counsel specifically reserved his position to argue fully against both the issue of vires and fair procedures and at the earliest possible date and which matters were not resolved by subsequent correspondence The Tribunal instead made a blanket ruling not to consider entertaining submissions of any nature whatsoever in respect of its decision even to the extent of stating in respect of the letter sent on the 25th November 2004 in advance of its ruling on the 27th that once it noted the introduction to the submissions in that letter and realised they concerned the discretion existing under the amended Terms of Reference they ceased reading them For the reasons set forth above this approach was wrong in law It follows ineluctably that the High Court was in turn wrong to reject this part of the appellant s challenge to the Tribunal s decision and in its judgment the High Court in reality gave no legal basis upon which the Tribunal s decision could be considered to have been valid apart from stating that the Tribunal has its own way of doing things and has powers to order its own procedures reasons which do not constitute a reasoned basis for its finding As an addendum to the foregoing however the issue of the right to be heard clearly involved a matter on which it was entirely appropriate for the Tribunal to say it would only consider for example written submissions indeed even written submissions of a limited length The Tribunal already had submissions in written form and on its own evidence had considered their introduction if only for the purposes of deciding that it would not entertain them The position adopted was however more stark because it is a common practice of tribunals to engage in sometimes protracted correspondence with parties in which submissions are made and contentions are advanced and responded to by the Tribunal In the event however that was not the approach of the Tribunal in this case which based its decision not on this ground but on two separate grounds both of which were also in law unsustainable The Ultra Vires Issue This issue can be dealt with briefly The ultra vires issue really falls into two separate parts In the first place it is argued on behalf of the appellant that the Tribunal asserted a competence or jurisdiction to make any inquiry into the mere ownership of lands in respect of which no corruption was alleged This point is argued on the basis that such competence does not come within the original Terms of Reference The appellant secondly contends that in his judgment the learned High Court judge wrongly dealt with this issue as a reasonableness or rationality issue rather than as an ultra vires issue On the issue of vires the Tribunal argues that the subject matter of the Carrickmines II Module fell within the proper scope of the inquiries which the Tribunal is required and or empowered to carry out pursuant to paragraph A 5 of the original Terms of Reference by reason of the more general mandate given to the Tribunal under that paragraph In any event the argument of the appellant is now irrelevant it is said because the Terms of Reference as amended in November December 2004 expressly mandate the Tribunal to proceed as it sees fit to conclude its inquiries including in particular the Carrickmines II Module Conclusion The finding of the learned High Court judge on vires supports the appellant s argument that he did deal with the matter as a reasonableness or rationality issue Such an approach is not supported by the case law as the issue of vires is to be considered in the context of the actual powers vesting in the Tribunal It is not a question of considering whether for example the Terms of Reference in the legislation can be read in a manner which allows these to be reasonably interpreted as coming within the powers vested in a decision maker In the case of the Tribunal established within the ambit of the Tribunals of Inquiry Act 1924 as amended the scope or ambit of its powers are to be determined within the strict terms established by the Houses of the Oireachtas and as found in the Orders of the Minister made thereon While however the learned High Court judge was wrong in law in deciding that the Tribunal had the latitude he allowed in its interpretation of the Terms of Reference and this might in general permit the appellant to succeed it is clear that on a consideration of the second aspect of the issue of vires that is by reference to the amended Terms of Reference the determination of the learned High Court judge that the Tribunal was correct was a good finding in law This is because although his reasons may not have been correct for the actual finding made it was a correct finding having regard to the clear terms and specific references made in the amended Terms of Reference to the Carrickmines II module and specifically Phases 2 to 8 thereof As is clear from the above background narrative the Tribunal had already filed the Fourth Interim Report and had sought additional powers in that report including those which permitted the Tribunal to make inter alia the very enquiries it had been making or proposed to make In the circumstances the appellant cannot succeed in his appeal on this ground of vires The Delay Issue Finally on the issue of delay it was argued by the Tribunal that its decision to commence public hearings in relation to the subject matter of Carrickmines II Module was taken in November 2003 and shortly thereafter in early 2004 objected to by the appellant on many of the grounds upon which it is now sought to challenge that decision in these proceedings The appellant did not seek leave to commence judicial review proceedings however until the 9th December 2004 and was on that argument accordingly outside the time limits for making such an application as laid down in Order 84 Rule 21 1 of the Rules of the Superior Courts No application was made to extend the relevant period and counsel for the Tribunal argues that no grounds in fact exist for any such extension had any such application been made Nor had the appellant acted promptly as required by the Rules and the case law in that regard The learned High Court judge in finding this to be so was therefore correct in his findings The issue of delay can be disposed or readily It is true that the appellant was notified in November 2003 of the impending public hearings and attended but on counsel s opening argument for the Tribunal reserved his position on the scope of the enquiry and the intent of the Tribunal in early 2004 immediately after counsel s remarks Equally the stance of the Tribunal on the exchanges of letters was clear by July 2004 However both the issue of vires and that of fair procedures depend materially on the content of the amended Terms of Reference While it is true the Tribunal in its own interim report sought changes they were not and could not in fact be adopted or put into effect until passed by resolution of the Houses of the Oireachtas in late November 2004 The application for judicial review was made just after the Minister making his Order in December 2004 and within weeks of the Oireachtas resolutions incorporating the specific amended Terms The application was therefore well within the time prescribed by the Rules and also promptly In the circumstances it is not possible to agree that the learned High Court judge was correct in holding that the latest relevant date was July 2004 Conclusion In light of the foregoing findings the Court concludes that the learned High Court judge erred in law on two of the three material issues The appeal is therefore allowed and the Court will set aside the High Court judgment and the Order made thereon THE SUPREME COURT Macken J Finnegan J O Donnell J S C No 258 of 2006 BETWEEN JOHN CALDWELL APPLICANT APPELLANT AND JUDGE ALAN MAHON JUDGE MARY FAHERTY AND JUDGE GERALD KEYS MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS RESPONDENTS RESPONDENTS Judgment of Macken J delivered on the 9th day of June 2011 This is an appeal from the judgment of the High Court Hanna J delivered on the 28th day of June 2005 The respondents to the appeal comprise as to the first named the Chairman and as to the remaining persons the other members of the Tribunal of Inquiry into Certain Planning Matters and Payments the Tribunal commonly known for some years since it was originally established in November 1997 under the Chairmanship of Flood J as the Mahon Tribunal The appellant is a former practising solicitor and former managing partner of a firm of solicitors in Dublin At the time relevant to the events the subject of this appeal the appellant had an interest in or a connection with certain lands at Carrickmines in County Dublin which inter alia were the subject of what was called the Carrickmines Module of part of the work of the Tribunal On the 13th December 2004 by order of the High Court McKechnie J the appellant was granted leave to apply for judicial review of a decision of the respondents to embark on or continue certain public hearings The reliefs in respect of which leave was granted included i a declaration that the respondents decision to embark on the above public hearings without giving the appellant an opportunity to make submissions thereon acted unlawfully and in breach of the requirements of natural and constitutional justice ii in the alternative an order of mandamus directing the respondents to hear such submissions prior to holding any or any further public hearings iii a declaration that the respondents in deciding to hold such public hearings acted and or was acting ultra vires and or without or in excess of jurisdiction iv a declaration that the respondents in deciding to hold such public hearings had acted or was acting irrationally and without or in excess of jurisdiction and v the costs of the proceedings all of which reliefs are set out in the High Court Order made on that date The grounds upon which the order was sought were briefly the following the respondent a in refusing to hear submissions on behalf of the applicant as to whether it should or should not exercise its discretion to hold or not to hold public hearings acted in breach of the audi alteram partem rule and of the requirements of fair procedures and natural and constitutional justice b was acting ultra vires in deciding to hold such public hearings because it was neither mandated nor empowered to inquire into or establish the beneficial ownership of the lands in question c even if it had such power so to do it was not necessary to conduct the same unless and until it had been concluded that corruption occurred in relation to those lands and that such corruption benefited the lands which was not the case d in deciding to hold such hearings had acted irrationally because there was no rational basis on which it could be concluded that hearings into the phases in question would be other than of no or very limited probative value e in deciding to hold such public hearings had failed to take into account relevant considerations and had thus acted without and or in excess of jurisdiction in particular in failing to consider i the likely duration and cost of such hearings ii whether such hearings were likely to provide evidence which would enable the respondent to make findings of fact or recommendations and to draw conclusions and iii whether there were other factors which would or would likely render such hearings inappropriate unnecessary wasteful of resources unduly costly unduly prolonged or which would be of limited or no probative value The above reliefs all relate to a decision by the respondents made on the 27th November 2004 to embark upon or to continue public hearings into Phases 2 to 8 inclusive of the Carrickmines II and Related Issues Module the Carrickmines II Module without hearing submissions on behalf of the appellant and to a second decision made to similar effect in early December 2004 The High Court proceedings were subsequently determined after a hearing which lasted five days By a judgment delivered on the 28th June 2005 the High Court dismissed the appellant s claims in their entirety Consequential upon that judgment and upon a supplemental judgment delivered on the 15th February 2006 dealing with an issue of privacy and the retrospectivity or otherwise of provisions of the European Convention on Human Rights Act 2003 an order of the High Court was made on the 5th April 2006 by which order all the reliefs sought by the appellant were refused and he was directed to pay the costs of the proceedings Notice of Appeal dated the 29th June 2006 from the above two judgments and the order of the High Court was filed on behalf of the appellant on the grounds therein set out seeking to have the same set aside The Scope of the Appeal The matter now comes before this Court in unusual but not unknown circumstances It is accepted by both parties that the subject matter of the appeal itself is now moot by virtue of the passage of time and the fact that events have overtaken the appeal The Tribunal has already concluded its oral hearings of the relevant parts of the Carrickmines II Module Because however the appellant also seeks to set aside the order for costs made against him it is necessary to consider the main issues raised in the appeal so as to determine if the findings of the learned High Court judge were correct and whether the costs order was properly made or ought be set aside On the written as well as the oral submissions there are three primary issues which arise on the appeal They may be described in the following terms as derived from the pleadings and the Notice of Appeal 1 The natural justice issue A declaration that the respondent in deciding to embark upon public hearings in relation to Phases 2 to 8 inclusive of the Carrickmines II and Related Issues Module without giving the applicant appellant the opportunity to make submissions as to whether the respondent should hold such public hearings acted unlawfully and in breach of the requirements of natural and constitutional justice 2 The ultra vires issue A declaration that the respondent in deciding to hold or to continue public hearings into Phases 2 to 8 inclusive of the Carrickmines II and Related Issues Module has acted and or is acting ultra vires and or without or in excess of jurisdiction 3 The delay issue This issue arises from the respondent s Notice of Objection which raised a timing issue in the following terms the applicant s case must fail on grounds of delay for failure to comply with the provisions of Order 84 of the Rules of the Superior Courts The General Context giving rise to the Dispute Before considering the issues it is necessary to set out the factual context in which they arose The original Terms of Reference when the Tribunal was first established pursuant to resolution of the Oireachtas and a Ministerial Order in late 1997 were relatively narrow and confined to examining inter alia the beneficial ownership of various lands in North Dublin referred to in a letter from a Mr Michael Bailey to a Mr James Gogarty their planning history relationships between the owners of the various lands and the Planning Authority and or members of the Oireachtas and the possible existence of corruption The Terms of Reference were amended in 1998 to include another named party a Mr Raymond Burke and again subsequently in 2002 The second and third interim reports of the Tribunal are dated the 30th September 2002 The fourth interim report relevant to this appeal was submitted to the Dail in Spring 2004 As far back as 2002 or 2003 the Tribunal had identified what became known as the proposed Carrickmines II Module as being among the matters it proposed to investigate That particular module was said by the Tribunal to have eight proposed phases mentioned below each consisting of separate land banks The purpose of each proposed module was to identify the beneficial ownership of the lands in question at least of the various land banks making up the different phases and in particular so far as this appeal is concerned the beneficial ownership of Jackson Way lands The adoption of these Phases was not based on any allegation of corruption having been made in relation to any of them or their owners or indeed any other persons unlike the position in relation to Carrickmines lands Rather it was because the Tribunal considered that the answer to the question as to the beneficial ownership of those land banks might reasonably be expected to throw some light on the true ownership of the Carrickmines lands At the relevant time the Tribunal had already investigated possible corruption in respect of what was called at that point in time Carrickmines lands but had made no findings of corruption or otherwise in relation to them One major issue it was considering was the true ownership of certain lands known as the Jackson Way lands The Jackson Way lands whose beneficial ownership was of interest to the Tribunal was or is still registered in the name of a company of which the appellant allegedly is or was a 50 owner The Tribunal did not know whether a Mr Liam Lawlor now deceased was or was not one of or even the only beneficial owner of those lands or whether those lands were owned only by the appellant and or another man called Kennedy as was contended Details of these matters are more fully set out in the High Court judgment In the fourth interim report the Tribunal at Chapter 6 paragraphs 6 02 to 6 08 drew particular attention to the need for far greater leeway or discretion in determining what enquires the Tribunal could or should proceed with what it could abandon or not commence at all and pointed out that its obligation to investigate all such matters as required by the then Terms of Reference placed a very onerous and unnecessary burden on the Tribunal A discretion to deal with these various matters was sought by the Tribunal in proposed terms The Tribunal had been required to produce a definitive list of all the areas it was working on and to choose from that list including a specific reference to Carrickmines and other areas on the criteria set out at J6 which ones would go to public hearing A key event therefore in this general context was the decision by the Oireachtas in late 2004 to amend the Terms of Reference of the Tribunal subsequent to its receipt of the Tribunal s Fourth Interim Report in Spring 2004 The Minister for the Environment and Local Government in consequence of that decision made an Order on the 3rd December 2004 which added a new paragraph J or J 6 to the Tribunal s existing Terms of Reference That amendment gave the Tribunal inter alia a new or greater discretion inter alia to discontinue or abandon its inquiries even if these came within its existing very broad Terms of Reference The Terms of Reference as subsequently amended and as extant when the application for judicial review was made include the following J 1 The tribunal shall subject to the exercise of its discretion pursuant to j 6 hereunder proceed as it sees fit to conclude its inquiries into the matters specified below and identified in the fourth interim report of this tribunal and set out its findings on each of these matters in an interim report or reports or in a final report a the Carrickmines I Module b the Fox and Mahony Module c the St Gerard s Bray Module d the Carrickmines II Module and Related Issues e the Arlington Quarryvale I Module f the Quarryvale II Module g those modules that are interlinked with the modules set out at paragraphs a to f and that are referred to in paragraph 3 04 of the fourth interim report of the tribunal This last reference is a reference to the Tribunal s intention on the completion of f above to resume hearings on a number of interlinked modules in the above remaining phases 2 to 8 Paragraph J 6 of the amended Terms of Reference provides as follows 1 The Tribunal may in its sole discretion in respect of any matter within paragraphs J 1 J 2 and J 3 of these amended Terms of Reference decide emphasis added i to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts to determine whether sufficient evidence exists in relation to the matters to warrant proceeding to a public hearing if deemed necessary or ii not to initiate a preliminary investigation and or a public hearing of evidence in relation to the matter notwithstanding that the matter falls within the tribunal s terms of reference or iii having initiated a preliminary investigation in private and whether same has been concluded but prior to the commencement of any public hearing of evidence in the matter to discontinue or otherwise terminate its investigation notwithstanding that the matter falls within the tribunal s terms of reference 2 In exercising its discretion pursuant to this paragraph the Tribunal may have regard to one or more of the factors referred to below i the age and or state of health of one or more persons who are likely to be in a position to provide useful information ii the likely duration of the preliminary investigation or public hearing into any matter iii the likely cost or other use of the resources of the Tribunal of such investigation or any stage of the investigation into any matter iv whether or not the investigation into the matter is likely to provide evidence to the Tribunal which would enable it to make findings of fact and conclusions and or to make recommendations v any other factors which in the opinion of the Tribunal would or would be likely to render an investigation or the continued investigation into any matter inappropriate unnecessary wasteful of resources unduly costly unduly prolonged or which would be of limited or no probative value 3 i Where the Tribunal believes that the continued conduct of its inquiries is of limited or no further value in discharging its mandate to inquire into the specific and general matters referred to in its Terms of Reference it may so report to the Clerk of the Dail and request him to convey to the Oireachtas the wish of the Tribunal that its investigations and inquiries should terminate on a date to be specified by the Tribunal ii In the event that the Oireachtas accedes to a request made of it by the Tribunal to terminate its investigations and inquiries as of a specified date the Tribunal will thereafter cease all further inquiries and will thereafter furnish to the Oireachtas its final report and recommendations after which the Tribunal s functions will be limited to the making of ancillary orders including matters relating to costs The amendment to the Terms of Reference also directed the Tribunal to conclude its inquiries into named matters including the Carrickmines II Module subject to its discretion under J 6 above by March 2007 The Background to the Decision of the 27th November 2004 On the 20th January 2004 following notification to relevant parties in November 2003 public hearings of the Carrickmines II Module started This commenced in the usual way with an opening statement by counsel on behalf of the Tribunal Counsel for the appellant immediately sought clarification on the following day as to the scope and intent of this Module In reply counsel for the Tribunal indicated inter alia that the inquiry was directed towards examination of the system used in other lands with regard to the parties involved and of devices entities business modules or structures used in those transactions with a view to enquiring if they established a relationship between the appellant Mr Lawlor and Mr Kennedy thereby assisting the Tribunal in its consideration of the true ownership of the Jackson Way lands The focus of the inquiry was to be directed towards their possible relevance to the Carrickmines I Module and the true ownership or control of those lands by the persons who had been named in connection with them At that point counsel for the appellant expressly reserved the appellant s position in relation to the intent of the Tribunal and the scope of same as then expressed by its counsel and did not resile from the position The Tribunal then proceeded to hear evidence from some witnesses in the Carrickmines II Module which continued up until the 13th February 2004 at which point the matter was adjourned to the 23rd July 2004 due to unrelated matters Considerable correspondence then took place between the appellant s solicitor and the solicitor for the Tribunal The relevant content of that is set out in appropriate detail in the High Court judgment The exchanges included a debate on whether or not inter alia the Tribunal had any

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  • to the domestic market In essence s 4 dealing with cartels and s 5 dealing with abuse of dominance of the 1991 Act replicated Articles 81 and 82 of the Treaty The consequences of such development relevant to this case were that by virtue of s 4 of the Act certain agreements between undertakings and other activities of such bodies which adversely affected competition in the supply of goods or in the provision of services were prohibited and rendered void However the actions captured by this provision were not declared criminal in nature Sanctions for breach were civil only Not surprisingly this lack of an effective method of public enforcement quickly emerged as a major weakness in the 1991 legislation Hence the enactment of the amending Act of 1996 The scheme of that Act insofar as is relevant criminalised the activities previously prohibited by s 4 of the 1991 Act Thereafter undertakings involved in such activities committed criminal offences Both the 1991 Act and the 1996 Act have been repealed and replaced by the consolidation act of 2002 Note however that the repealed legislation applies to this case as the offences took place prior to the enactment of the Competition Act 2002 An undertaking for competition purposes para 8 supra can be a person a body corporate or an unincorporated body This original definition continues to apply sec 3 of the Competition Act 2002 As natural persons are directly instrumental in the actions of a body corporate the 1996 Act also created offences against certain influential position holders within a company being essentially those without whose involvement the offending conduct could not be endorsed or approved Culpability in this regard was confined to persons with a high level of responsibility for decision making i e directors managers other similar officers and those who hold themselves out as such The result was that arising out of the same set of circumstances any one of such persons if not an undertaking in his her own right as well as an undertaking so defined could each be guilty of a criminal offence That was the scheme of the Act with its justification being enforcement driven If the Act criminalised one player but not the other responsibility by way of effective sanction and deterrent could be skilfully and freely avoided or at least substantially diminished by any number of expedient devices such as in the case of a body corporate liquidation and in the case of an individual being impecunious That would not have addressed the weakness mentioned above it would have made enforcement arduous and avoidance affordable and undemanding Therefore in principle there is nothing surprising in the concept of both non personal undertakings and their managers officers and like persons being exposed to criminal prosecution arising out of the same abusive conduct Such persons are separate and distinct legal personalities and therefore no question of double punishment arises Analogous provisions are contained in other Acts such as sec 297 of the Companies Act 1963 as inserted by s 137 of the Companies Act 1990 and the Safety Health and Welfare at Work Act 2005 see D P P v Roseberry Construction Ltd 2003 4 I R 338 The question remains however as to whether and if so to what extent the Oireachtas has implemented such policy in particular the issue is whether s 3 4 of the 1996 Act permits the prosecution and conviction of the accused in the circumstances outlined The case law referred to in support of the D P P s position at least in some respects is of interest but provision must be made to reflect the fact that where the offence in question is statutory based the wording of the relevant provision may differ from s 3 4 of the 1996 Act and where common law based is of course devoid of legislative intervention Notwithstanding some comment is desirable The issue in R v Donald 1986 83 Cr App R 49 arose out of an allegation that the appellants had sheltered without lawful authority or reasonable excuse a post office robber knowing that he had committed such offence with the intention of impeding his apprehension The wording of s 4 1 of the Criminal Law Act 1967 which created the offence reads Where a person has committed an arrestable offence any other person who knowing or believing him to be guilty of the offence or some other arrestable offence does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence Emphasis added At the time of their conviction the principal offender whom it was alleged had committed the arrestable offence had not stood trial as he had absconded The issue on appeal relevant to the instant case was described by the court as being can it ever be right in the absence of a prior conviction of a principal for a person to be brought to trial upon a charge under section 4 1 and for the prosecution to endeavour to prove that the principal though not being tried is nevertheless guilty of the arrestable offence about which those charged under section 4 1 are alleged to have known and to have assisted the offender upon after the commission of the offence Whilst the Court of Appeal essentially concerned itself with the adequacy of the judge s charge nonetheless it was quite satisfied that the s 4 charge in principle could proceed without the principal offender having previously been charged Another example might be found in the United Kingdom case of R v Dickson 1991 B C C British Company Law Cases 719 In that case directors of a certain company had been charged with offences under s 20 1 of the Trade Descriptions Act 1968 which reads Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of or to be attributable to any neglect on the part of any director manager secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly Emphasis added Note the similarity between that provision and s 3 4 of the 1996 Act Whilst the facts are not of direct relevance to the instant case what should be noted is the following comment by the Court of Appeal in Dickson s case at p 722 on the section We however accept Mr Daggs submission that the appellants could even in the absence of the company have been found guilty of the relevant offences upon proof that the company had committed the substantive offences On the common law side several offences readily come to mind which for their successful prosecution depend in a variety of ways upon some third party having committed an offence Conspiracy is one where it is necessary to establish that at least one other person was criminally involved Aiding and abetting is obviously another See R v Cogan 1976 Q B 217 Receiving stolen goods is a third There are many others but of course each is individual to that specific offence The above references on both the statutory and common law side are of relevance only to demonstrate what in any event is otherwise commonly known namely that many offences exist which have as an essential ingredient the commission by a third party of that or some other offence So in general the structure and parameters of the statutory provisions in the instant case are not unusual There is no doubt but that s 3 4 a of the 1996 Act is a provision creating a criminal offence and therefore must be strictly construed There can be no creation or extension of penal liability by implication by the use of obscure or imprecise language or by the application of interpretive aids which otherwise would be available in a civil setting As a result the provision in question expressly and in clear and unambiguous language must have by literal construction the meaning contended for by the D P P That provision however must be viewed and its true meaning ascertained by reference to its immediate context properly derived from the scheme of the Act or more accurately from that part of the Act which criminalised behaviour previously not so declared It is only if in accordance with this approach and if the ordinary meaning of the words can be so understood that the result suggested by the D P P can stand It is self evident from the section which in this respect is quite clear that before Mr Hegarty can be convicted of either or both offences the D P P must establish at the relevant time a that Fate Park Ltd t a Sweeney Oil Rabbit Oil was an undertaking b that as such it has committed a sec 2 offence c that the accused was a manager or officer of that undertaking as per the indictment and d that the acts constituting the sec 2 offence have been authorised or consented to by the accused in such capacity Note the statutory presumption in s 3 4 b of the 1996 Act In addition to these and any other essential requirements individual to the particular offences the D P P must discharge to the required standard of proof all other prosecutorial obligations common to an indictable offence Unless therefore the D P P can satisfy the jury of these matters the accused person cannot be duly convicted It should be noted that the offence referable to the individual is not the same offence as that which an undertaking may be guilty of As stated the former is a sec 3 4 offence with the latter being an offence under s 2 of the 1996 Act It is not a situation of joint liability on the same facts What the former has in common with the latter is the fact that the penalty for both offences is the same I do not consider that there is any controversy about the matters outlined at para 36 supra save for that referred to at subpara b above which is the essence of the question raised in the case stated What does this requirement of s 3 4 mean and how and by what process can it be established The answer submitted on behalf of the accused is that the undertaking following prosecution and a trial in due course of law must be duly convicted of a sec 2 offence nothing short of this process would suffice As a matter of generality I know of no principle of law when dealing with like or related circumstances which would support this viewpoint On the contrary what authority there is is against it See paras 31 34 supra As a matter specific to this case to so hold in my view would require a rewriting of the section to read something like Where an undertaking has been convicted of or Where a conviction has been obtained against on undertaking for an offence under s 2 of the Act and the doing of the acts The actual wording is clearly far removed from this It speaks of where an offence under s 2 of this Act has been committed by an undertaking There is no reference to a conviction and in my view there is no interpretative basis for importing into the provision such a condition The Oireachtas could expressly have done so but did not As previously explained there may well have been good reason for this This position becomes clearer when the distinction between a formal conviction and a finding that an offence has been committed is understood The former needs little attention As part of a trial in due course of law a court or jury having and remaining within jurisdiction may record a guilty verdict against an accused person Such trial attracts to it all legal and constitutional rights which the issues in the case may give rise to Otherwise any trial or purported conviction would be devoid of legality However as I have said what the section requires is a finding of fact by the jury that a sec 2 offence has been committed by the undertaking Such a finding if it were to be made would have the following significant differences than a conviction would have in the process envisaged in the preceding paragraph These would include the fact that the undertaking i is not on trial or the subject of any charge ii is therefore not an accused person is not exposed to any criminal sanction and cannot have a conviction recorded against it Moreover any such finding by the jury could not be referred to or relied upon if the undertaking was subsequently charged or became an accused person could not amount to an autrefois convict or give rise to any form of estoppel if the undertaking was subsequently put on trial could not form the basis of either a restriction application under s 150 of the Companies Act 1990 or a disqualification application under s 160 thereof Finally the undertaking if subsequently tried would be entitled to all appropriate rights and safeguards and could challenge any evidence including that relied upon to obtain any finding in the earlier proceedings Therefore it is clear to me that the undertaking is wholly removed from the position it would be in if it was on trial for a criminal offence As a result I am satisfied that by applying the principles set forth above the true meaning of s 3 4 of the 1996 Act is that the undertaking so referred to does not have to be convicted of a s 2 offence before the director or manager so referred to can be found guilty of the offence created thereby Rather it is an essential ingredient of this offence that the company itself must have committed an offence This can be established like all other necessary facts by placing before the jury such credible evidence as would when properly charged and directed enable it to find that a s 2 offence has been committed Such evidence is fully open to challenge by the accused The jury would approach this task in exactly the same way as all other matters within its purview The ultimate decision is of course a matter for the jury The accused also submits that the statutory condition in the subsection may be said to expose the undertaking to a finding that it has committed a criminal offence and therefore in the absence of having the same rights as an accused person its good name and reputation may be exposed He goes on to suggest by some unspecified route that this proposition supports his construction of the section in question relying in the process on the trial judge s views on this matter As previously stated the trial judge was heavily influenced by concerns regarding the undertaking its position and its rights He was of the view that were a jury to find the undertaking guilty of an offence without a trial in due course of law the same would constitute a violation of its constitutional and legal rights Disregarding the issue of guilt vis à vis conviction for a moment it is quite clear that these comments were specifically focused on the company and whatever rights it might have and any prejudice it may suffer they were not addressed to the accused or his position It is therefore difficult to see how these could have been determinative of his decision It has not been suggested that the failure to prosecute or obtain a conviction against the company or the absence of its presence by representation in court are factors which affected the trial process itself in that by some means the right of the accused to a fair trial will be jeopardised The accused retains the right of due process in respect of the charges which he faces It is the duty of the trial court which duty remains and continues throughout the trial to ensure that such rights are not violated if they are they must be protected and vindicated The nature and circumstances of any violation will determine the nature and scope of the protection So on the evidence as disclosed on the case stated the essence of the judge s opinion is not one sourced on process impact or detriment but rather one founded on principle For the reasons given I cannot with respect agree with this There is another aspect to this point which must be mentioned which is that the accused person cannot in my view advance the company s position as being that of his own The latter would be a classic illustration of the jus tertii principle which Hardiman J in A v Governor of Arbour Hill Prison 2006 4 I R 88 at p 165 described as the operation of the jus tertii rule is that a person who seeks to invalidate a statutory provision must do so by reference to the effect of the provision on his own rights He cannot seek to attack the section on a general or hypothetical basis and specifically may not rely on its effect on the rights of a third party see Cahill v Sutton 1980 I R 269 In other words he is confined to the actual facts of his case and cannot make up others which would suit him better Accordingly the accused must respond to the charges as these affect him and cannot assert a prejudice or plead a detriment which is that of the company s alone The conclusions arrived at in this judgment derive solely from the true interpretation of the statutory provisions mentioned in the indictment and in particular of ss 2 and 3 4 of the 1996 Act In consequence and for the reasons set forth above I would answer the questions posed in the case stated as follows 1 Question A Yes 2 Question B No THE SUPREME COURT MURRAY C J O DONNELL J McKECHNIE J 2008 Appeal No 350 IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR AND PAT HEGARTY ACCUSED JUDGMENT of Mr Justice William M McKechnie dated the 28th day of July 2011 This is a consultative case stated by His Honour Judge Groarke of the Western Circuit pursuant to s 16 of the Courts of Justice Act 1947 wherein by reference to the circumstances so outlined he seeks the opinion of this Court on two questions The facts as agreed or so found and upon which the case is stated are as follows On the 21 st May 2008 Mr Hegarty the accused person attended at Galway Circuit Criminal Court to answer two charges preferred against him on Bill No MS 55 04 the first of which reads as follows Statement of Offence Being a Manager or Officer of an undertaking which entered into an agreement which had as its object the prevention restriction or distortion of competition contrary to s 4 1 of the Competition Act 1991 and s 2 of the Competition Amendment Act 1996 as provided for by s 3 4 a of the said Act Particulars of Offence Patrick Hegarty between the 1 st day of January 2001 and the 11 th day of February 2002 both dates inclusive in the County of Galway were a Manager or Officer of Fate Park Limited t a Sweeney Oil Rabbit Oil an undertaking within the meaning of s 3 of the Competition Act 1991 such company having committed an offence emphasis added namely entering into an agreement with other undertakings again within the meaning of s 3 of the Competition Act 1991 which had as its object the prevention restriction or distortion of competition in the trade of gas oil in Galway city and county by directly or indirectly fixing the selling price of gas oil and authorised or consented to the doing of the acts constituting that offence Count No 2 on the indictment is in identical form save that the trading product was kerosene On a previous occasion namely the 9 th May 2007 Mr Hegarty was also called upon to answer the same charges but on that occasion a company named Sweeney Oil Limited t a Rabbit Oil was cited on the indictment as his co accused That company faced two charges arising out of the same set of circumstances The first was that it had entered into an agreement with other undertakings which had as its object the prevention restriction or distortion of competition by directly or indirectly fixing the selling price of gas oil in Galway city and county contrary to s 2 2 of the Competition Amendment Act 1996 the 1996 Act Again count No 2 on the indictment was in identical form save that the product was kerosene For reasons which have never been evidentially explained but described in submissions as being technical in nature the Director of Public Prosecutions the D P P on that occasion the 9 th May 2007 entered a nolle prosequi in respect of the company The prosecution against the accused was then adjourned so that an abridged book of evidence could be served hence the new trial date of the 21 st May 2008 was fixed At the commencement of that trial counsel on behalf of the accused moved a motion under s 4 E of the Criminal Procedure Act 1967 as inserted by s 9 of the Criminal Justice Act 1999 to quash the indictment on the basis that any successful prosecution against his client was contingent on Fate Park Ltd having committed a particular criminal offence See Particulars of Offence at para 2 supra This could only be established by a conviction being secured against it Since that company had never been prosecuted for such an offence it was therefore not possible for the jury to return a guilty verdict against Mr Hegarty The D P P disagreed with this proposition Whilst accepting the contingency as an ingredient of the offence the D P P argued that the same could be established otherwise than by formal conviction Having heard submissions from Mr Edward S Walsh S C on behalf of the accused and Mr Denis Vaughan Buckley S C on behalf of the D P P the trial judge rejected the submissions of the prosecution Being dissatisfied with such ruling expressed whilst the matter was still pending the learned judge agreed to submit by way of case stated the following two questions for the opinion of this Court Where an individual is prosecuted pursuant to s 3 4 a of the Competition Act 1996 sic a whether an adjudication as to whether the relevant undertaking has committed an offence can be undertaken when no prosecution has been initiated against the undertaking and b whether it is necessary that the undertaking be convicted of the offence before the individual can be convicted The submissions made before the Circuit Criminal Court have largely been repeated before this Court and can be summarised in the manner following First however it is convenient to refer to the relevant statutory provisions Section 4 of the Competition Act 1991 the 1991 Act provides inter alia that all agreements between undertakings which have as their object or effect the prevention restriction or distortion of competition in trade in any goods or services are prohibited and void Price fixing is a notorious example of such hard core activity Any entity engaged for gain inter alia in the supply or distribution of goods is an undertaking s 3 of 1991 Act that remains the law as provided by s 3 of the Competition Act 2002 There is no doubt but that Fate Park Limited t a Sweeney Oil Rabbit Oil being the company referred to in the indictment is such an undertaking and hereinafter will be referred to either as such or as heretofore the company Pursuant to s 2 of the Competition Amendment Act 1996 an undertaking which enters into the type of agreement previously referred to is guilty of an offence the sec 2 offence Section 3 4 a of this Act reads 3 4 a Where an offence under Section 2 of the Act has been committed by an undertaking emphasis added and the doing of the acts that constituted the offence has been authorised or consented to by a person being a director manager or other similar officer of the undertaking or a person who purports to act in any such capacity that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence the sec 3 4 offence It is essentially under this section that the accused stands charged For ease of reference I have termed the offence referable to the undertaking the sec 2 offence or the offence under s 2 of the 1996 Act and that referable to the individual as the sec 3 4 offence or the offence under s 3 4 of the 1996 Act On behalf of the accused it is accepted that by virtue of s 4 1 of the 1991 Act and s 2 of the 1996 Act it is an offence in certain circumstances for two or more undertakings to agree with each other to fix the selling price of trading goods the sec 2 offence and that by virtue of s 3 4 of the 1996 Act where such an offence has been committed any director manager or similar officer or a person purporting to act as such of any party who authorises or consents to the underlying acts is also guilty of an offence the sec 3 4 offence It should be noted that these are separate and distinct offences involving different parties By reference to such provisions however it is submitted that before Mr Hegarty can be found guilty of the offences as charged it is necessary for the D P P to establish that Fate Park Ltd being the undertaking in question has been prosecuted and successfully convicted of a sec 2 offence as otherwise it will not be possible to prove this essential fact Such a prosecution against a company which is entitled to its good name and character can only be conducted in accordance with law guided by Article 38 1 and Article 40 3 of the Constitution As no such prosecution let alone conviction has been taken or recorded against that company it must follow in such circumstances that the accused cannot be convicted of an offence under s 3 4 of the 1996 Act It is asserted that this proposition is the only construction permitted by a constitutional interpretation of the section A recorded conviction against the company is a sine qua non to a personal conviction Any criminal liability which s 3 4 of the 1996 Act imposes on a specified person is quo terminus sic with and contingent upon the criminal liability of the company Personal liability is purely collateral to that of corporate liability the section does not envisage a prosecution against the former but not the latter whatever the reasons The words as well as used in the section are supportive of this submission Any contrary view of the section leads to unacceptable consequences It could mean that in practice when a person is called upon to defend himself he would also have to rebut the allegations referable to the company perhaps in circumstances where he would not have access to material evidence which otherwise would be available to that entity See s 2 of the 1996 Act Given the severity of the sanctions available following conviction any such trial in those circumstances would of necessity be unfair Further when considering the position of any personal accused such as Mr Hegarty in these proceedings the position of the company or undertaking must also be considered The duty of a court is not confined to individual protection but also extends to corporate protection To rely on the company s rights as the accused does in support of his individual position is not a jus tertii as suggested by the prosecution Rather it is and should be a legitimate concern for the court given its role in the administration of justice The question is asked how can it be constitutionally permissible to allow the D P P to invite a jury to find an undertaking guilty of a criminal offence where no formal complaint of misconduct has been made in that regard and in consequence where there has been no investigation where the entity has not been charged and where save perchance it would be unaware of and unrepresented in the trial process This it is said cannot be correct In such circumstances this Court is urged to answer the first question in the negative and the second affirmatively On behalf of the D P P it is said that the submissions of the accused person as properly understood are fundamentally incorrect Whilst it is conceded that before the accused can be convicted it is necessary for the prosecution to establish that the company has committed an offence under s 2 of the 1996 Act nevertheless that requirement can be satisfied without the corporate entity being charged much less formally convicted Once the jury is satisfied that the company has committed a sec 2 offence it is open to it to convict the accused of the offences levelled against him This is the true construction of the statutory provision under scrutiny It is claimed that there are many examples of offences within the corpus of traditional criminal law where a person s conviction is predicated upon the commission of an offence by another whom for whatever reason has neither been charged nor previously convicted For this purpose there is a clear distinction between a conviction and a finding that an offence has been committed Offences such as conspiracy aiding and abetting are examples See R v Donald 1986 83 Cr App R 49 There are several others grounded in both common law and in statute including as in this case the Competition Acts 1991 2002 In the context of the statutory framework establishing the sec 3 4 offence it is submitted that there may be many reasons to explain why the undertaking named on the indictment has not been prosecuted The company may be in liquidation wound up or struck off some technical legal difficulty may exist the evidence against the individual may be convincing or persuasive or it may consist of admissions or be supported by confessions which are not available against the company If by reason of these or other like circumstances an individual could not be charged such would result in that person enjoying an undeserving immunity from prosecution despite the creation of statutory offences particular to him It is strongly claimed that the accused cannot rely as part of his own defence on the rights of the company or plead any prejudice which it could assert Rather he is confined to examining the charges as these affect him not their impact on the company The concept of jus tertii applies A v Governor of Arbour Hill Prison 2006 4 I R 88 is referred to This last mentioned submission is responsive to the views of the trial judge which are adopted by the accused As outlined in the case stated the learned judge stressed that in the absence of the named undertaking having previously been convicted in due course of law of a sec 2 offence the prosecution against the accused person could not succeed His reasoning for such which is summarised at para 20 of the case stated is more fully outlined in the ruling which he gave on the 21 st May 2008 From the transcript it appears that the trial judge s major concern was to the effect that a finding of guilt could be returned by a jury against the undertaking without that undertaking having been charged or having been afforded an opportunity of defending itself in court He felt alarmed at such a proposition given the constitutional rights of all legal entities including the company s right to its good name and reputation He was not impressed with the suggested distinction between conviction and a finding of guilt sic In consequence the trial judge s prima facie view would be to refuse to allow the indictment to proceed against Mr Hegarty The D P P submits that the question of inconsistent verdicts is entirely separate and in any event does not arise on the facts of this case Case law in other jurisdictions was cited as being fully supportive of the D P P s position See R v Dickson 1991 B C C 719 and R v Ontario Chrysler 1997 Ltd 1994 CanLII 8758 ON C A In addition a passage quoted in Pinto and Evans Corporate Criminal Liability 2 nd Ed 2008 at p 80 when referring to s 18 of the English Theft Act 1967 is also relied upon In conclusion it is submitted that the questions posed in the case stated should be answered as to the first in the affirmative and the second negatively Against the statutory background outlined above and in the particular circumstances of this case either established or so found the learned Circuit Court judge has submitted in the case stated two questions para 6 supra on which he seeks the opinion of this Court In essence question a asks whether for the purposes of the charges standing against the accused a jury can lawfully find that the undertaking has committed an offence under s 2 of the 1996 Act in circumstances where that undertaking has not been prosecuted for such offence and question b seeks to ascertain whether a conviction formally secured and recorded against that undertaking for a sec 2 offence is a necessary pre condition for the successful prosecution of the accused person for a sec 3 4 offence In considering these questions the position of Sweeney Oil Ltd t a Rabbit Oil does not arise for consideration That was the undertaking joined as a co accused on the original indictment para 3 supra and the one in respect of which the nolle prosequi was entered The effect of that nolle and in particular whether it amounts to an autrefois acquit is irrelevant as the undertaking which the accused is concerned with is Fate Park Ltd that being the company specified in the amended indictment for the purpose of the sec 3 4 offence Consequently the relevant undertaking is the latter and not the former Incidentally it is not readily apparent why the identity of the co accused in the original indictment should differ from that of the undertaking named in the current indictment In any event one must proceed on the basis that Fate Park Ltd has not been prosecuted for a sec 2 offence The reasons for this are not material The fact is that no prosecution exists and no conviction has been recorded against that undertaking The latter is really the point not the former It is not suggested that this situation will change In fact the submission of the D P P is entirely based on the status quo remaining He says that the prosecution of the accused can continue regardless of the position of the undertaking Prior to 1991 the regulation of competition in Ireland insofar

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  • part It is for this reason that they sought not withstanding the admitted and inordinate delay in filing their defence that the judgment in default be set aside so that the case could be heard and determined on its merits On the other hand the plaintiff has in essence argued that the inordinate and inexcusable delay on the part of the defendants first of all in filing a defence and subsequently in bringing a motion to set aside the judgment in default of defence disentitles them to the relief sought The plaintiff relied on the dictum of Hardiman J in Gilroy v Flynn 2005 1 I L R M at 293 where he stated It is important to make the point that there have been significant developments in this area since the decision of the High Court in Rainsford Rainsford v Limerick Corporation 1995 21 I L R M 561 or in Primor plc v Stokes Kennedy Crowley 1996 2 I R 459 By S I No 63 of 2004 Ord 27 of the Rules of the Superior Courts has been significantly amended Hardiman J then went on to refer to the Courts having become more conscious of the unfairness which could arise in allowing an action based on witness testimony to proceed at a considerable time after the cause of action accrued and the jurisprudence of the European Court of Human Rights relating to Article 6 of the European Convention on Human Rights according to which Courts independently of the parties have an obligation to ensure that cases before the Courts are heard and determined within a reasonable time At p 294 Hardiman J stated These changes and others mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope The principle they enunciate may themselves be revisited in an appropriate case In particular the assumption that even grave delay will not lead to the dismissal of an action if it is not on the part of the plaintiff personally but on the part of their professional advisor may provide an unreliable one The dictum of Hardiman J reflects the approach of the Courts in contemporary circumstances having regard to the need to as far as practicable ensure the timely disposal of cases pending before the Courts and the rights of parties to a hearing within a reasonable time as envisaged by Article 6 of the ECHR The Gilroy case involved an appeal by a plaintiff against an order for dismissal of the proceedings for want of prosecution pursuant to Order 27 Rule 1 Hardiman J avoided laying down any hard and fast rules since a court in exercising its discretion under Order 27 must invariably have regard to the particular circumstances of each case and the need to do justice between the parties Indeed in that case the Court set aside the order of the High Court dismissing the plaintiff s claim notwithstanding that he had been guilty of inordinate delay and the delay was inexcusable At the time of the hearing of this appeal the trial of the plaintiff s claim had been set down for hearing before the High Court as an assessment of damages The appellants had indicated that they were and had been since 20th April 2007 in a position to file their defence and meet the issue of liability on its merits at the hearing on such date for which it may be fixed for the hearing on damages There was no evidence and indeed it had not been contended that a fair hearing of the issues on their merits at a trial would be prejudiced by reason of the delays which had occurred However delay which is inordinate and inexcusable even if it would not prejudice a fair hearing of a case on its merits must always be a material factor in deciding whether or not to grant the party guilty of delay discretionary relief particularly if that relief would cause further undue delay to the other party While the European Convention on Human Rights is not directly applicable in national law it is applicable to the extent provided by s 2 1 of the European Convention on Human Rights Act of 2002 Accordingly the Rules of the Superior Courts as enacted and amended by statutory instruments fall within the ambit of s 2 1 and subject to any relevant constitutional considerations should be interpreted in that light Of course the case law of the ECHR on the issue of delayed proceedings does not by reason of delay only dictate or require that a party be deprived of a hearing or of being granted discretionary relief under national law which would in the interests of justice between the parties permit a hearing on their merits How such issues arising from such delay on the part of a party are resolved remains a matter for the Court s discretion having regard to the interests of justice in all the circumstances of the case Absent a male fides or an abuse of process on the part of the party guilty of delay which does not arise in this case delay may be a grounds for refusing a particular relief in the interests of doing justice between the parties in the circumstances of a particular case but it is not a question of simply punishing a party guilty of such delay by depriving them of a relief which the interests of justice or fairness would otherwise require In Croke v Waterford Crystal Ltd 2005 2 I R 383 Geoghegan J endorsed as pertinent and useful a dictum of Bowen L J in Cropper v Smith 1884 26 Ch D 700 stated It is a well established principle that the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other party The courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace It seems to me that as soon as it appears that the way in which the party has framed his case will not lead to a decision of the real matter in controversy it is as much a matter or right on his part to have it corrected if it can be done without injustice as anything else in the case is a matter of right The Courts in the interests of justice lean in favour of a determination of litigation on the merits of the issues between the parties rather than preventing a party from having access to the Courts when his or her rights or obligations are being determined for procedural reasons including culpable delay That is not to say that the Courts would not be more stringent in requiring adherence to time limits in particular when set by an order of a court in a particular case for the reasons outlined by Hardiman J and referred to above However each case falls to be determined on its own particular facts and circumstances in order to do justice to the parties In this case the inordinate delay was on the part of the State s solicitor frankly admitted but embedded in the alleged liability of the defendants were serious issues concerning the reputation of two Garda Officers and this is a factor which could not be ignored There is also the fact that the plaintiff could not be said to be prejudiced as to a fair hearing of the issues in this case by granting relief which the defendants have sought Permitting a defence to be filed by the appellants allowed the Garda Officers to defend themselves That was on one side of the balance On the other side is the undoubted inordinate and culpable delay on the part of the named parties However it was not in issue that the question of liability could be heard at the same time as the issue of damages which had already been set down for trial and without necessitating any further delay arising from any liberty to file a defence denying liability It was having regard to all the circumstances of the case and in particular those circumstances that I concluded that the relief sought by the defendants should be granted but only on terms as to costs That is to say that the defendants were to be liable for all the costs that the plaintiff incurred up to the date of trial It is for these reasons that I considered that the order for judgment in default of defence be set aside and the defendants be granted liberty to file their defence THE SUPREME COURT 66 2009 Kearns P Murray J Fennelly J BETWEEN JOSEPH McGUINN PLAINTIFF RESPONDENT AND THE COMMISSIONER OF AN GARDA SIOCHANA THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM IRELAND AND THE ATTORNEY GENERAL DEFENDANTS APPELLANTS JUDGMENT of Murray J delivered on the 28th day of July 2011 This appeal concerned an interlocutory matter in which the above named defendants appealed against an order of the High Court refusing their application to set aside a judgment obtained by the plaintiff the respondent in default of defence The Court in the exercise of its discretion made an order allowing the appeal so as to set aside the judgment obtained in default and thereby enabling the defendants to file a defence The order was made on terms that the appellant defendants pay the plaintiff s costs to date of trial The following are the reasons for that ruling The appellants application was made pursuant to Order 27 Rule 14 2 of the Rules of the Superior Courts which provides as follows Any judgment by default whether under this Order or any other of these Rules may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit if the Court is satisfied that at the time of the default special circumstances to be recited in the Order existed which explain and justify the failure and where an action has been set down under Rule 8 such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down Background Circumstances By plenary summons dated 12th April 2005 the respondent issued proceedings against the defendants claiming inter alia damages for unlawful arrest false imprisonment assault and breach of constitutional rights As appears from the Statement of Claim issued and served in these proceedings the plaintiff s claim centres on events alleged to have taken place on the 8th April 2003 when a number of Gardaí attended at the respondent s place of employment arrested him brought him to a multi storey car park to his home which was entered and then brought him to a Garda Station before being released later that day It is claimed that in the course of those events a Garda member placed a gun to the plaintiff s head and pinned him against a wall informing him that he was being arrested under s 30 of the Offences Against the State Act in relation to a firearms offence and that he was a suspect in an incident which had occurred the previous day in Castlebar It is alleged that notwithstanding his protests and those of his employer that the Gardaí without lawful or reasonable cause wrongfully and forcefully arrested the plaintiff and placed him handcuffed in the rear of a Garda patrol car It is then alleged that Garda members drove the plaintiff to a multi storey car park and that some business having been conducted there the respondent was driven to his residence where entry was gained by way of keys claimed to have been unlawfully demanded of the respondent a short time beforehand During this time it is claimed that the plaintiff was repeatedly terrorised by demands for information which he did not have After completing the alleged unlawful search of the respondent s dwelling the plaintiff was brought to the Garda Station in Castlebar and placed in an interview room The respondent claimed to have been unlawfully detained there for approximately 2½ hours during which time his custody was not processed in accordance with law and he was denied certain rights and entitlements while in custody The respondent also claimed that by reason of these events he was severely injured and his reputation and credit had suffered loss and damage Procedure The plaintiff s Statement of Claim which was undated was delivered on some date after an appearance had been entered to the plenary summons by the appellants on 17th November 2005 The respondent then brought a motion for judgment in default of defence issued on 26th January 2007 returnable for the 19th February 2007 It is common case that at that time it was agreed between the solicitors for the respondent and the solicitor for the appellants that that motion would be struck out on consent with an order extending the time to the defendants to deliver the defence by a further three weeks and costs of the motion to the respondents By letter dated 26th February 2007 the solicitor for the plaintiff respondent wrote to the solicitor for the appellants stating Dear Sirs We refer to the above matter which came before the High Court on Monday the 17 th inst The motion was struck out on consent with costs to the plaintiff and the defence to be filed within three weeks We await hearing from you with your defence in this matter and oblige In fact this letter was as the solicitor for the plaintiff in his Affidavit frankly acknowledged unfortunately a miscommunication What had in fact happened was that the motion for judgment in default of defence instead of being struck out with an extension of time for the filing of a defence for three weeks as agreed was adjourned for three weeks to the 12th March 2007 Thus that order being contrary to what the parties had agreed and indeed contrary to what was stated by the plaintiff s solicitor in his subsequent letter the defendant s solicitor was unaware that the motion had been adjourned When the motion was relisted for hearing three weeks later on the 12th March there was for obvious reasons no appearance by the defendants On that day the learned High Court judge dealing with the motion made an unless order that is to say that he made an order granting judgment by default to the plaintiff and that the matter would proceed by way of assessment of damages unless the defence was delivered by the defendants by the afternoon of 21st March 2007 On 13th March 2007 the solicitor for the plaintiff wrote to the Chief State Solicitor informing him of the making of that order The solicitor in the Chief State Solicitor s Office dealing with the matter responded on the 14th March 2007 indicating that the defence would be filed by 21st March In the event no defence was filed by that date On the 28th March 2007 the plaintiff s solicitor wrote to the defendants solicitor indicating that he was proceeding to have the order of the High Court perfected and served since the defence had not been filed on Wednesday March 21st What next occurred was that the plaintiff s solicitor received a full defence from the defendants solicitor on the 20th April 2007 However this was returned to the Chief State Solicitor on the 26th April 2007 with a letter indicating that the solicitor was not in a position to accept the defence and at the same time reciting the list of opportunities that had been afforded to the defendants to file a defence since the service of the statement of claim in February 2006 Further correspondence ensued between the respective solicitors in May 2007 concerning the circumstances in which judgment had been obtained in default and the failure of the defendants to file a defence once informed of the true nature of the High Court order On July 11th the solicitor for the plaintiff wrote to the Chief State Solicitor enclosing a copy of the perfected order of the High Court and stated his intent to have the proceedings listed for hearing on foot of that order Following that letter the subsequent communication between the parties or steps taken by them included the following by letter dated 27th May 2008 the plaintiff s solicitor again wrote to the solicitor of the defendants seeking a letter of consent to the action being set down for trial This was replied to on the 12th June 2008 in which the defendants solicitor said he was taking his clients instructions in the matter By letter dated 20th June 2008 the plaintiff s solicitor stated that he proposed to file a notice of intention to proceed if he did not hear from the solicitor for the defendants within 14 days Awaiting a reply to this letter he wrote again on the 15th July 2008 indicating that he was proceeding by way of notice of intention to proceed The plaintiff s solicitor subsequently served a notice of intention to proceed dated the 30th July 2008 Notice of trial was then served on the 24th September 2008 and on

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  • only been obtained by a failure to follow any of the rules of procedure But in any case in my opinion the Court does not and I doubt whether it can lay down rigid rules which deprive it of jurisdiction Mr Mohan also cited in support the principles enunciated by Sir Roger Ormrod in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc 1986 2 Lloyds in the following manner i A judgment signed in default is a regular judgment from which subject to ii below the plaintiff derives rights of property ii The Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms unconditional and the court should not lay down rigid rules which deprive it of jurisdiction per Lord Atkin at p 486 iii The purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default iv The primary consideration is whether the defendant has merits to which the court should pay heed per Lord Wright at p 489 not as a rule of law but as a matter of common sense since there is no point in setting aside a judgment if the defendant has no defence and if he has shown merits v Again as a matter of common sense thought not making it a condition precedent the court will take into account the explanation as to how it came about that the defendant found himself bound by a judgment regularly obtained to which he could have set up some serious defence Mr Mohan further submitted that by its judgment in Croke v Waterford Crystal Limited and Another 2005 2 I R 383 this court had emphasised albeit in the context of an application to amend proceedings the importance of having the real issues between the parties determined at trial Mr Mohan argued that the court should engage in a two stage process Firstly the general rules which apply to Order 13 Rule 11 of the Rules of the Superior Courts and which applied to Order 27 Rule 14 prior to the 2004 amendment thereof should be considered While Order 13 Rule 11 refers specifically to setting aside a judgment where there has been no appearance the general principle that a court may set aside or vary a judgment upon such terms as may be just should still inform the approach of the court to the defendants application in this case The second stage of the process required the court to consider whether the defendants have a good defence on the merits He submitted that the affidavit evidence established the fact of a good defence and facts concerning the manner in which the judgment came to be granted which would justify the court in exercising its discretion to set aside the judgment Mr Conor Maguire senior counsel for the plaintiff contended that a complete sea change had been wrought by the amendment of Order 27 Rule 14 in 2004 An applicant for relief must now demonstrate special circumstances to be recited in the Order which existed at the time of the default which both explain and justify the failure to deliver the pleading in question That this was a substantial change in the existing rules which rendered redundant much of the pre existing jurisprudence is evident from decisions of this Court in the analogous situation of applications to dismiss for want of prosecution brought under Order 27 Rule 14 1 In those cases a plaintiff is now also obliged to also demonstrate special circumstances to explain and justify his failure to deliver a Statement of Claim These principles had been enunciated in cases such as Gilroy v Flynn 2005 1 I L R M 290 and Stephens v Paul Flynn 2008 4 I R 31 These decisions also took account of the passing into law of the European Convention on Human Rights Act 2003 Article 6 of the European Convention for the Protection of Human Rights Fundamental Freedoms specifically provides that in the determination of civil rights everyone is entitled to a fair and public hearing within a reasonable time by a court or tribunal and that a plaintiff should not be shut out from obtaining his remedy where there has been inordinate delay in defending the claim as found by the learned trial judge and as indeed was accepted by the defendants Mr Maguire submitted that the test is not whether the defendants have a defence with a reasonable prospect of success but rather whether there were special circumstances at the time of the default which justify and explain the failure Alternatively if special circumstances existed at the time of the failure to file a defence the circumstances in question cease to be special when the defendants allow twenty one months to elapse before seeking to set aside a judgment In reply Mr Mohan while acknowledging the applicability to his case of the jurisprudence in relation to claims to dismiss for want of prosecution submitted that the interests of justice required that he be allowed defend the proceedings He contended that the plaintiff had failed to establish or even allege that he had suffered any specific prejudice as a result of delay Any penalty to be suffered by the defence could be adequately reflected in an appropriate costs order DISCUSSION The first matter I wish to consider is the specific terminology of Order 27 Rule 14 2 of the Rules of the Superior Courts in relation to an application of this nature The Rule specifically provides that a judgment obtained by default may be set aside by the court if the court is satisfied that at the time of the default special circumstances to be recited in the Order existed which explain and justify the failure This particular form of wording is certainly open to the interpretation that the court may or should set aside a judgment only where the special circumstances may be said to have arisen at the time of the default However any such approach to interpretation would in my view be mistaken illogical and absurd For example if at any time after judgment had been entered the solicitor dealing with the matter on behalf of a defendant had become seriously ill or had lost his papers through fire or theft such special circumstances could not be said to have arisen at the time of the default and it would therefore follow that an applicant for relief would be unable to satisfy the requirements of the Rule That would be plainly absurd Equally absurd it seems to me would be to interpret the Rule as meaning that once special circumstances at the time of the default were established an applicant thereafter had limitless time in which to apply to the court for relief That would also be absurd because plainly a special circumstance at one particular time may cease to be such following a lengthy period of inactivity by or on behalf of the party entitled to rely on that special circumstance Secondly while counsel for the applicant accepted that the jurisprudence developed in relation to Order 27 Rule 14 1 of the Rules of the Superior Courts has direct relevance and application to the granting of relief under Order 27 Rule 14 2 it seems to me that the application to move expeditiously must be far greater on a party against whom a judgment has been entered than that which devolves on a lethargic plaintiff to advance his proceedings A judgment is a solemn order of the court and is usually final notwithstanding that it may be subject to appeal As noted in Halsburys Laws of England 4th Ed Vol 26 para 559 Application to set aside a judgment or order in default of appearance or defence which is regular should be made as soon as possible after it comes to the knowledge of the defendant This is necessarily the case given that a judgment is conclusive as between the parties and their privies and is conclusive evidence against all the world of its existence date and legal consequences While the Rules of the Superior Courts provide no time limit for the making of an application to set aside Order 30 Rule 1 of the Circuit Court Rules provides that such an application be made not later than 10 days after the party against whom judgment has been given becomes aware of that fact Order 30 Rule 2 provides that every such application must set forth clearly and briefly the reasons why the party applying did not deliver an appearance or did not deliver a defence as the case may be the nature of the fraud misrepresentation surprise or mistake relied upon and the grounds of defence to the action in which the judgment was given Cordial s Consolidated Circuit Court Rules Practice and Procedure Round Hall 2001 at C 145 makes clear that where a party fails to move within the 10 day period the issue of the party s delay will be a material factor in the judge s exercise of his discretion Thirdly I think it must be seen as fundamental to the Court s approach in applications of this nature that the introduction of the requirement to demonstrate special circumstances to be inserted in the Order significantly raises the threshold for an applicant over any requirements which existed under the former Order 27 Rule 14 The amendment effected by S I 63 2004 can only be seen as ushering in a new era where inordinate delays which might have been countenanced in the past should be eradicated from modern legal culture This is a view forcefully expressed by Hardiman J in Gilroy v Flynn 2005 1 I L R M 290 and by Clarke J in the High Court and by this Court in Stephens v Paul Flynn 2008 4 I R 31 Fourthly I think some consideration of the role and effect of the European Convention on Human Rights Act 2003 must inform the Court s approach to applications of this nature be they under Order 27 Rule 14 1 or Rule 14 2 It will be recalled that the preamble to the Act recites that the Act of 2003 is an Act to enable further effect to be given subject to the Constitution to certain provisions of the Convention for the Protection of Human Rights Fundamental Freedoms Section 2 of the Act of 2003 provides that In interpreting and applying any statutory provision or rule of law a court shall in so far as is possible subject to the rules of law relating to such interpretation and application do so in a manner compatible with the State s obligations under the Convention provisions Section 4 of the Act of 2003 contains the dual requirement that judicial notice shall be taken of the Convention provisions and of any decision or judgment of the European Court of Human Rights This section is the counterpart of s 2 of the Human Rights Act 1998 in the U K which provides that a court in determining a question which has arisen in connection with a Convention right must take into account inter alia judgments and decisions of the European Court of Human Rights The phrase judicial notice necessarily involves having regard to the content of the Convention s provisions just as for example arises in the instance of the Civil Liability assessment of Hearing Injury Act 1998 which requires that a court in all proceedings claiming damages for personal injury arising from a hearing injury shall take judicial notice of the Report of an Expert Hearing Group and have regard to certain matters in the Report when assessing damages The weight to be attached to the material in respect of which the court is required to take judicial notice remains of course a matter for the court I do not see the role of an Irish court therefore as being confined exclusively to s 2 of the Act of 2003 The stand alone provision contained in s 4 provides that judicial notice shall be taken of the Convention provisions Further while every organ of the State is obliged to perform its functions in a manner compatible with the State s obligation under the Convention provisions the idea that a court notwithstanding that it is excluded from the definition of organ of the State could proceed on the basis of indifference to the principles contained in the Convention strikes me as a startling proposition indeed Article 6 of the European Convention specifically provides In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law As was noted by both parties to the appeal in Desmond v MGN Limited Unreported Supreme Court 15th October 2008 this does not mean that the Convention even in the form in which it has been incorporated into Irish domestic law is to be taken as providing horizontal enforceable rights as between private litigants Both parties in that case however accepted that when exercising its discretion under Order 27 the court must remain mindful of obligations imposed on it by the Convention given that those obligations exist quite independently of the action or inaction of the parties to the litigation While I expressed the view in that case that the provisions of the Act of 2003 and the requirements of the Convention added a further consideration to the list of factors which were enumerated in Rainsford v Limerick Corporation 1995 1 IRLM 561 and Primor Plc v Stokes Kennedy Crowley 1996 2 I R 459 a view not shared by my learned colleague Geoghegan J I think it important to record that in delivering judgment on behalf of the majority of the court in that case Macken J expressly resiled from considering whether the provisions of the Act or the Convention came into play on the basis that there was ample extant Irish jurisprudence on the matter without doing so In repeating what I said in Desmond v MGN Limited I stress that I am not suggesting that the Convention is to be seen as having any effect other than the specific sub constitutional role assigned to it by the Act of 2003 Nor am I saying that the jurisprudence of the European Court of Human Rights mandates that proceedings be struck out or dismissed for delay I do not therefore believe that the principles enunciated in the two great Irish cases of Rainsford and Primor respectively should be seen as written in tablets of stone or as being incapable of further development in modern times where previously tolerated delays are no longer seen as justifiable Finally the decision of a court to grant or refuse relief in applications of this nature is ultimately a discretionary matter I would reiterate the views expressed by Lynch J in Martin v Moy Contractors Unreported Supreme Court 11th February 1999 in which he stated at p 13 The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution Provided that the High Court decision is within the limits of reasonable discretion this Court should not interfere with it In this case the learned President gave a reasoned judgment and his reasoning is clearly valid His decision naturally followed from such reasoning and is also therefore clearly valid There is accordingly no basis on which this court should interfere with the judgment of the learned President DECISION In my view the applicant has clearly demonstrated that there were special circumstances at the time when judgment was obtained in the High Court in this case such as to enable an application to set aside the judgment to be brought The defendants solicitor was clearly unaware that the Motion for Judgment instead of being struck out had been adjourned for three weeks He was equally unaware that an Unless Order had been made by Herbert J until notified to that effect by the plaintiff s solicitors These were clearly special circumstances and I would be of the view that any application brought within a few weeks of discovering that judgment had been obtained would undoubtedly have been successful Such an application would have been brought promptly However that is not what happened It took an incredible period of twenty one months for the defendants solicitor to bring the present application under Order 27 Rule 14 of the Rules of the Superior Courts This was not against a backdrop where the plaintiff and his advisers remained inactive or indifferent to the progress of the litigation On the contrary both before and after judgment the plaintiff s solicitors repeatedly stressed their anxiety to move the proceedings forward as quickly as possible This is most definitely not a case where any blame can be laid at the door of the plaintiff or his legal advisers Mr Murray the solicitor dealing with this matter in the Chief State Solicitor s office has very honestly and admirably admitted that the fault for the delay in this case was entirely his Unfortunately his affidavit does not detail what may have been perfectly understandable reasons for the delay in question In seeking relief in these circumstances the case law further demonstrates that some real defence on the merits must be shown to exist Beyond stating that the members of the Garda Siochana against whom allegations have been made are both apprehensive and indignant that a judgment which affects their reputations remains intact the affidavit does not go on to specify other than through denials what the details of the defendants case might be It seems clear to me that the interests of justice require that a plaintiff be entitled to rely on a default judgment when no challenge is brought within a reasonable time to the entry of such judgment I would stress again that the onus and duty falling on a defendant in these circumstances must be seen as far greater than that which devolves on a plaintiff who has been lethargic or inactive in pursuing his remedy I would dismiss the appeal THE SUPREME COURT Kearns P Murray J Fennelly J S C No 066 of 2009 BETWEEN JOSEPH McGUINN PLAINTIFF RESPONDENT AND THE COMMISSIONER OF AN GARDA SIOCHANA THE MINISTER FOR JUSTICE EQUALITY LAW REFORM IRELAND AND THE ATTORNEY GENERAL DEFENDANTS APPELLANTS JUDGMENT of Kearns P delivered the 28th day of July 2011 This case addresses the principles applicable where a defendant moves to set aside a judgment obtained in default of defence Order 27 Rule 14 2 of the Rules of the Superior Courts as substituted by S I 63 2004 provides Any judgment by default whether under this Order or any other of these Rules may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit if the Court is satisfied that at the time of the default special circumstances to be recited in the order existed which explain and justify the failure and where an action has been set down under rule 8 such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down BACKGROUND The plaintiff in these proceedings is a scaffolding contractor who resides in Castlebar County Mayo He alleges that on 8th April 2003 five members of An Garda Siochana came to his place of employment while he was working there He alleges that the Garda officers in question pushed his employer Michael Hopkins to one side and that one of the officers then placed a gun to his head spun him around and pinned him to a wall He alleges that he was then informed that he was being arrested under s 30 of the Offences Against the State Act 1939 in relation to a firearms offence and further that he was a suspect in an incident which occurred the previous day in Castlebar The plaintiff and his employer denied the allegations but the Gardai nonetheless handcuffed the plaintiff and placed him in the rear of a garda patrol car He was then driven to another location before being driven to his place of residence It is alleged that the plaintiff was there required to make a telephone call to a certain third party following which a direction was given that the plaintiff be taken to the Garda Station in Castlebar He was detained there for approximately two and a half hours In addition to his claim arising out of these alleged events the plaintiff further alleges a second instance of garda harassment on 6th March 2004 In the proceedings brought by him herein the plaintiff has claimed damages for unlawful arrest false imprisonment and slander For their part the defendants have denied that the plaintiff was wrongfully or recklessly arrested or that any violence or force was inflicted on the plaintiff In particular it is denied that a gun was placed to the plaintiff s head The Gardai had a warrant to search the plaintiff s property on the date in question and contend that the plaintiff had no objection to the Gardai searching his flat and further contend that the plaintiff directed a member of An Garda Siochana to the location of his keys Proceedings by Plenary Summons were commenced on 12th April 2005 An appearance thereto was entered on behalf of the defendants on 17th November 2005 A Statement of Claim was delivered on 8th February 2006 No notice for particulars or defence having thereafter been delivered by the defendants the plaintiff s solicitor wrote to the Chief State Solicitor s office no less than six times during the course of 2006 requesting a defence before ultimately issuing a Motion for Judgment in Default of Defence returnable for 19th February 2007 It was agreed between the solicitors for the plaintiff and the defendants that the motion would be struck out on consent with an order extending time to the defendants to deliver their defence within three weeks However it would appear that notwithstanding this agreement the motion was in fact adjourned for three weeks and reappeared in the Court Motion list on 12th March 2007 On that date there was no appearance on behalf of the defendant and the learned High Court judge Herbert J made an Unless Order that is to say a conditional order providing that that judgment in default of defence would be granted unless a defence was delivered by 21st March 2009 The defendants were thus given a further eight days to file their defence The plaintiff s solicitor informed the Chief State Solicitor of this development by letter dated 13th March 2007 The solicitor for the defendant acknowledged the position by letter dated 14th March 2007 and in that letter Mr Sean Murray the solicitor in the Chief State Solicitor s office who was dealing with the matter confirmed that the defence would issue to the plaintiff s solicitors by fax on 21st March 2007 and by post thereafter The defence was not filed by 21st March 2007 and on 28th March 2007 the plaintiff s solicitors warned that they were proceeding to have the order perfected By letter dated 28th March 2007 the plaintiff s solicitor wrote to Mr Murray to that effect A defence was eventually furnished to the plaintiff s solicitors on 20th April 2007 but was returned to the Chief State Solicitor s office on 26th April 2007 with a cover letter indicating that the plaintiff s solicitor was not in a position to accept same The letter returning the defence set out in some detail the list of opportunities afforded to the defendants to file the defence following the service of the Statement of Claim in February 2006 In May 2007 the solicitor for the defendants indicated that his clients intended to bring a motion to set aside the order and judgment at the earliest opportunity However nothing further occurred On 11th July 2007 the plaintiff s solicitors furnished a copy of the perfected Order of Herbert J to the State Chief Solicitor s office and advised that as per the terms of the Order the plaintiff was proceeding to have the matter listed for hearing A year later on 27th May 2008 the plaintiff s solicitor wrote to the solicitor for the defendants indicating their intention to set the matter down for trial On 12th June 2008 the solicitor for the defendants replied indicating that he was taking his clients instructions On 20th June 2008 and again on 15th July 2008 the plaintiff s solicitors wrote warning that a Notice of Intention to Proceed would be served if there was no response from the defendant No reply was received to either letter Notice of Intention to Proceed was then served on 30th July 2008 Notice of Trial was served on 24th September 2008 and on 21st October 2008 the plaintiff s solicitor wrote to the solicitor for the defendants enclosing all up to date medical reports in respect of the plaintiff and a schedule of witnesses intended to be called by the plaintiff at the trial of the action It was further indicated that counsel would be attending the Dublin Personal Injuries List on 29th October 2008 to seek a date for hearing At that juncture the solicitor for the defendants contacted the plaintiff s solicitor by telephone with a request to delay the application until after 3rd December 2008 to afford him an opportunity to consider the medical reports which had been filed on behalf of the plaintiff and if necessary to have the plaintiff medically examined by the defendants medical expert While the plaintiff s solicitors agreed to this course nothing further was heard from the defendants and on 9th December 2008 the plaintiff s solicitor wrote again indicating that counsel for the plaintiff would seek a date for hearing in late January 2009 and would be making the application on 10th December 2008 At that juncture a further period was sought by the solicitor for the defendants to arrange to have the plaintiff medically examined but having regard to the delays already encountered in the matter the plaintiff s solicitor decided to proceed with the application and seek to have the matter called on On 10th December 2008 the plaintiff s solicitor received correspondence from the solicitor for the defendants dated 9th December 2008 indicating that he would be making an application by way of Motion on Notice seeking to set aside the Order of Mr Justice Herbert dated 12th March 2007 The solicitor for the defendants wrote a further letter on 10th December 2008 indicating that the plaintiff was to be examined by Dr Patricia Casey Professor of Psychiatry at the Mater Hospital on 11th February 2009 Counsel for the plaintiff attended before Quirke J on 10th December 2008 seeking a date for hearing in late February 2009 in light of the medical appointment arranged for 11th February 2009 On 22nd December 2008 a motion to set aside the judgment was brought by the solicitors for the defendants and made returnable for 12th January 2009 That motion was ultimately heard and decided by the High Court Cooke J on 9th February 2009 In the affidavit grounding that application Mr Murray stated that it had been the defendants intentions at all times to fully contest the action Exhibited in the affidavit was a copy of the defence which it had been hoped to file The only ground relied upon by Mr Murray by way of special circumstance was the fact that the original motion for judgment was not dealt with in the manner which had been agreed between the solicitors in that instead of being struck out the motion was adjourned in circumstances where three weeks later a conditional order for judgment in default of defence was made instead Mr Murray further deposed to his belief that there were good grounds upon which to defend the action He further contended that the defendants would suffer grave prejudice if the Order was not set aside However having heard the arguments of both sides Cooke J refused the relief sought by the defendants and directed that the costs of the motion be awarded to the plaintiff Following the making and perfecting of his Order on 10th February 2009 the defendants served a Notice of Appeal on the solicitor for the plaintiff on 3rd March 2009 the last day of the time allowed for the making of such an appeal In the interim the plaintiff s solicitor had written to the defendants solicitor on 18th February 2009 indicating that counsel for the plaintiff would be applying for a date for hearing on 4th March 2009 On that date Quirke J having heard that the motion to set aside was refused listed the case for hearing on 13th May 2009 The solicitor for the defendants then sent a letter for voluntary discovery to the plaintiff s solicitor on 8th April 2009 The request was based on the report of Dr Casey of the examination of the plaintiff on 11th February 2009 but no copy of the report was furnished to the plaintiff s solicitor until 11th May 2009 A further letter for voluntary discovery was sent on 17th April 2009 which contained further categories of documentation sought by the defendants Both requests for voluntary discovery were outside the time prescribed by the Rules of the Superior Courts On 13th May 2009 counsel for the defendants made an application for an adjournment of the hearing due to the fact that his medical expert Dr Casey would not be available on 14th May 2009 should the matter run over to that date On that occasion the issue as to whether or not the defendants should be allowed call medical evidence in relation to the claim arose given that there was no defence filed on their behalf Quirke J adjourned the hearing of the case firstly to 26th May 2009 and thereafter to 14th July 2009 with priority For the purposes of the appeal to this Court Mr Sean Murray has sworn a further affidavit which addresses in somewhat greater detail the reasons for the hitherto unexplained delay in addressing the various procedural steps required to be taken in the office of the Chief State Solicitor He very candidly and fairly acknowledges that there has been excessive delay consisting of a delay from 21st March 2007 being the date upon which judgment as ordered by Herbert J came into effect until 22nd December 2008 the date of issue of the Notice of Motion to set aside the judgment being a delay in the order of twenty one months He accepts full responsibility for this delay and states The only explanation I can offer this honourable court for such delay is that same was due to a combination of pressure of work and oversight on my part and I accept that this does not excuse such a significant period of delay in the circumstances At a later point in his affidavit Mr Murray notes that when the matter was listed for hearing in the High Court personal injuries list on 13th May 2009 the plaintiff s legal advisers in accordance with their letter of 24th April 2009 argued that the defendants ought not to be allowed call any evidence at all in the case Quirke J however indicated that in his view the defendants were entitled to call evidence in relation to issues affecting quantum and the assessment of damages Subsequent to the adjournment of the hearing on 13th May 2009 Mr Murray deposes that as a result of representations made by the first named defendant a different senior counsel was retained in the case and that that senior counsel had a consultation with the relevant garda witnesses involved in the circumstances of both incidents the subject matter of the proceedings Those witnesses indicated at a consultation held on 21st May 2009 their serious concerns about the fact that judgment in default of defence had been obtained and that the absence of a defence amounted in effect to an admission of liability on their part Mr Murray deposed to the fact that the members of the Gardai concerned have communicated to their own legal advisers their concerns that failure to defend the proceedings would damage their reputation as members of An Garda Siochana in the locality where they serve Mr Murray further deposes that if the evidence available to the defendants from the Gardai i e in respect of liability is allowed in evidence and if that evidence is accepted that the defendants have a good defence to the case Any suggestion that the delay might have prejudiced the plaintiff could be overcome by the defendants willingness that the case be tried on 14th July 2009 whereas the defendants would suffer substantial prejudice if deprived of the entitlement to defend the action JUDGMENT OF THE HIGH COURT As indicated above the High Court Cooke J determined this motion by means of an ex tempore ruling delivered on 9th February 2009 The learned High Court judge considered that there had been inordinate and inexcusable delay by the defendants in moving to set aside the judgment obtained on 12th March 2007 and that having regard in particular to the forbearance exhibited by the plaintiff s solicitors in issuing warnings of intention to proceed in the period from May to October 2008 it would be inconsistent with doing justice between the parties to grant the defendants motion In particular the learned High Court judge noted In the court s view a defendant who finds that judgment in default of defence has been recovered against him has a duty to move promptly to set aside that judgment if liability is to be contested While noting there may have been a misunderstanding as to the striking out or adjournment of the original motion for judgment the defendants were clearly aware of the obligation to recover its position by a delivery of a defence on numerous occasions They had promised to do so within the eight days provided for in the court order and as promised in their letter of 14th March 2007 The learned High Court judge also stated It can hardly be doubted that if the motion had been brought at any time during 2007 it would have stood a reasonable chance of being allowed That the Chief State Solicitor was alive to the need to take such a step is evident from the correspondence at the beginning of May 2007 Instead nothing was done throughout 2007 and it was the plaintiff s solicitor who reactivated matters in May of the following year The learned trial judge further noted that even when the plaintiff s solicitor effectively offered opportunities to the Chief State Solicitor s office to mend its hand nothing was done Even when the plaintiff s solicitor began preparations for the hearing the Chief State Solicitor s office did not move to assert any intention to contest liability but effectively acquiesced in the steps taken in the trial preparations being undertaken by the plaintiff The defence merely sought time to examine the medical reports and conduct their own medical examination Cooke J concluded his ruling as follows Finally the court was heavily influenced in rejecting the motion by the complete absence from the defendants grounding affidavit of any explanation or excuse for the failure to take any step towards re asserting an intention to contest liability between April 2007 and December 2008 Such delay in the circumstances was inordinate and unexcused and in the absence of any mitigating explanation the court considered that it had no evidential basis upon

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  • of the view that the concerns expressed by Mr Doherty in his memoranda of the 5th October 1999 were unfounded I considered that there was no need for express wording excluding ICP beneficiaries as I considered that they were by definition already excluded as they were no longer employees of the appellant Company and therefore no longer active beneficiaries of the plan In effect I considered that the amendment proposed to the definition of pensionable salary insofar as it made reference to a member encompassed active members only and therefore excluded ICP beneficiaries 39 It is now agreed that express language should have been used to exclude Income Continuance Plan beneficiaries The very frank and entirely credible account of the in house lawyer as to why this was not done has not been contradicted or in any way challenged on its facts She was not cross examined 40 Accordingly there is unanimity in the evidence of all the persons engaged in the preparation of the Deed of Amendment as to what their several and mutual intention was There is frank and un glossed evidence from the in house lawyer engaged by the trustee Irish Pensions Trust of the exact nature of the misapprehension which led her to think that express language was unnecessary to exclude former employees who are deriving an income continuance benefit from the proposal to end integration None of this evidence was in any way controverted challenged or glossed on its facts by counsel on behalf of the representative defendant Although as the next section of this judgment will show there has been a good deal of discussion of the standard of evidence required in a rectification case none of the authorities in my view features on its facts such cogency and unanimity of evidence as is found in this case Rectification and questions of Evidence 41 The issues which arose on the trial of this matter in the High Court were exclusively issues of evidence The representative defendant who opposed the granting of the relief sought did not contradict any of the deponents who swore affidavits on behalf of the plaintiff on their evidence He did not put forward contradictory evidence himself 42 In the words of the learned trial judge 57 The principal ground upon which the application for rectification is opposed on behalf of the representative beneficiary is that the evidence relied upon by the plaintiff and supported by I P T and the current trustees to establish an intention of the Company and I P T to exclude I C P beneficiaries from the amendment in para D of the 1999 Deed falls short of the convincing proof or cogent evidence required in accordance with the principles set out above 43 It cannot be too strongly emphasised that where evidence is presented on affidavit a party who wishes to contradict such evidence must serve a Notice of Intention to Cross examine In a case tried on affidavit it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to In a case where there is no contradictory evidence an attack on the evidence which is before the Court must include cross examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case even taking the evidence it has produced at its height 44 A claim for rectification is a claim for an equitable remedy whereby the Court orders that a written instrument be altered so that its text as altered or rectified expresses the actual intention or agreement of the parties The principles applicable to an application for rectification and in particular the rectification of an occupational pension scheme were considered by the High Court in Irish Pensions Trust Ltd v Central Remedial Clinic and Ors 2006 2 IR 126 There Mr Justice Kelly referred to the decision of this Court in Irish Life Assurance Company Ltd v Dublin Land Securities Ltd 1989 IR 253 and to its treatment of a decision of the English Court of Appeal on the question of the standard of proof required in such an application The English case was Joscelyne v Nissan 1970 2 QB 86 where it was said by Russell L J at p 98 of the Report We do not wish to attempt to state in any different phrases that which we entirely agree except to say that it is in our view better to use only the phrase convincing proof without echoing an old fashioned word such as irrefragable and without importing from the criminal law the phrase beyond all reasonable doubt it would be a sorry state of affairs if when that burden is discharged a party to a written contract could on discovery that the written language chosen for the document did not on its true construction reflect the accord of the parties on a particular point take advantage of that fact 45 I respectfully agree with the general approach in the quotation above but would also express the view that in Ireland no form of words other than proof on the balance of probability should be used and that the multiplication of phrases may cause confusion It appears clearly established in Irish law that there are but two standards of proof that applicable in criminal proceedings which require proof beyond reasonable doubt and that applicable in civil proceedings where proof on the balance of probability is required 46 The judgment of this Court in Banco Ambrosiano v Ansbacher and Co 1987 ILRM 669 is authority for the proposition that there are only two standards of proof and that it would be difficult to express any intermediate standard and the attempt would introduce a vague and uncertain element into the law The reasoning behind this was held to have been aptly put in a passage from Kerr on Fraud and Mistake 7th edition p 672 In matters that regard the conduct of men mathematical demonstration cannot be expected or required Like much of human knowledge on all subjects fraud may be inferred from facts that are established Care must be taken not to draw the conclusion hastily from premises that will not warrant it but a rational belief should not be discarded because it is not conclusively made out If the facts established afford a sufficient and reasonable ground for drawing the inference of fraud the conclusion to which the proof tends must in the absence of explanation or contradiction be adopted 47 Continuing Henchy J said Proof of fraud is frequently not so much a matter of establishing primary facts as of raising an inference from the facts admitted or proved The required inference must of course not be drawn lightly or without due regard to all the relevant circumstances including the consequences of a finding of fraud But that finding should not be shirked because it is not a conclusion of absolute certainty If the Court is satisfied on balancing the possible inferences open on the facts that fraud is the rational and cogent conclusion to be drawn it should so find 48 Banco Ambrosiano was a case of fraud but I would adopt what is said there in relation to the standard of proof in civil proceedings generally If a conclusion is likely to have severe consequences for an individual such as fraud dereliction of duty grave professional shortcomings conduct generally considered disgraceful the Court must of course be careful not to jump too easily to a conclusion on grounds that do not support it But then a court must avoid doing that in any case but should perhaps self consciously remind itself of that need in a case of particular sensitivity 49 No doubt the trier of fact will always bear in mind the particular difficulties of any particular case or type of case and the scope for the Court to be imposed upon Nonetheless this is a civil case and therefore requires proof on the balance of probabilities To achieve this standard naturally convincing evidence will be required 50 I regard the statements just made as quite consistent with what is said in the 7th edition of Spry s classic work on The principles of Equitable Remedies London 2007 In early cases when the doctrine of rectification had not been fully developed the strength of the evidence that was required before the terms of a document would be rectified was much emphasised More recently when the application of the doctrine has become more clear it has been established that the ordinary rules in regard to the standard of proof apply although those rules may require that according to the precise circumstances particular evidence should be received with caution 51 Indeed some of the cases show a tendency to apply too high or too nice a standard in such cases Thus in Thomas Bates and Son Ltd v Wyndhams Lingerie Ltd 1981 1 WLR 505 Buckley L J said In some cases the standard has been equated with a criminal standard of proof beyond reasonable doubt I think that the use of a variety of formulations to express the degree of certainty with which a particular fact must be established in civil proceedings is not very helpful and may indeed be confusing The requisite degree of cogency or proof will vary with the nature of the facts to be established and the circumstances of the case I would say that in civil proceedings a fact must be proved with that degree of certainty which justice requires in the circumstances of the particular case In every case the balance of probability must be discharged but in some cases that balance may be more easily tipped than others 52 I think the last sentence very aptly expresses the fairly simple insight which lies behind the use of different phrases There is but one standard of proof apart from criminal proceedings which is the balance of probability but in some cases that standard will be more easily met than in others For example a case where commercial parties have had their intentions expressed in a professionally drafted legal document which document is later said not in fact to express the intentions of the parties will naturally call for evidence which is clear coherent and convincing if the onus of establishing on the balance of probability that the parties intention was not correctly expressed is to be discharged This is so obvious as to be almost a truism The onus will of course be easier to discharge if the facts put forward are entirely uncontradicted notwithstanding that a representative of the class of persons interested in having the claim for rectification rejected was present and professionally represented and did not cause the witnesses as to fact to be cross examined 53 In this connection it seems to me of great significance that there was in fact no dispute that the amendments to the Deed had been executed by the appellant and by I P T I do not wish to say anything at all to take from the learned trial judge s very proper insistence on cogency in evidence But the cogent evidence will be directed to matters in issue in the proceedings 54 While therefore the learned trial judge was quite correct to demand a high degree of cogency in the evidence it is nevertheless difficult to avoid thinking that her very proper zeal in this direction may have led her to adopt a standard which certainly approaches if indeed it does not mirror the criminal standard For example her findings in relation to an absence of evidence of formal corporate approval by both Tara Mines and Irish Pensions Trust suggest a standard which is unnecessarily exacting The Deed of Amendment was executed by Tara Mines but the learned trial judge found that no evidence has been adduced of any decision taken by or on behalf of that Company to approve the Deed nor to authorise the execution or affixing of the seal of that Company to the Deed nor of the requirements of the Articles of Association of that Company in relation to the use of its seal 55 Where the due execution of a document has been deposed to by a witness who is not challenged contradicted or cross examined I do not regard it as a significant defect in the evidence that the terms of a Company s Articles of Association in relation to the use of its corporate seal have not been proved 56 In light of these principles as to the law of evidence applicable on an application like the present I turn to consider the central features of the evidence in this case The Sworn Evidence 57 The following was established in the sworn evidence in the present case and is representative of the purport of a good deal of other evidence a The Company s contention that it was always intended by the Company and the Trustee of the Plan at the time the 1999 Deed of Amendment was executed that the elimination of integration should apply only to members of the Plan who were or are employees of the Company in active employment as of the 20th February 1998 or thereafter Affidavit of Christopher Blake 12th March 2006 b It was widely known that integration had been removed from the Pension Plan but as already deposed to on behalf of the Company this was only intended to be for those active members of the work force as at 20th February 2008 Affidavit of Christopher Blake sworn the 7th December 2006 c At all times it was the understanding of each of the current trustees that the elimination of integration was only intended to apply to members of the Pension Plan who reached normal pension age 62 after the 20th February 1998 provided that such persons were in active employment with the Company as of the 20th February 1998 or thereafter In this regard I would emphasise that the three worker representatives of the trustees were all members of the Pension Project Group that came up with the proposals which formed the basis of the Deed of Amendment The initial three management representatives i e this deponent the second defendant and Mr Tully were all aware of the details of the amendment in their capacity as senior members of the Company s management throughout the process i e prior to the setting up of the Joint Working Group during its deliberations and following the implementation of the Joint Steering Committee proposals As noted above Mr Broxon was similarly aware of the details of the amendments through his involvement with I P T The trustees are conscious of the fact that the improvements to the Pension Plan were as a consequence of agreed cost savings and productivity increases which were agreed with the Company s active workforce the only people who could deliver such savings and improvements Throughout the Joint Steering Committee process the Company only consulted and negotiated with its then active workforce Affidavit of John Kelly a Tara Mines Executive and Chairman of the Board of Trustees of the Tara Mines Pension Plan in his affidavit sworn 11th July 2006 d In his Memorandum of 20th July 1999 Mr Doherty set out that the changes introduced on the 20th February 1998 were to apply to active employees and not to those on disability benefit In his subsequent Memorandum of 5 October 1999 he referred to the draft Deed of Amendment which had been prepared by my colleague Des Murray and stated that he was not sure that the draft adequately reflected the fact that the changes introduced as at 20th February 1998 applied to active employees only excluding previous withdrawals and income continuance claimants at that time Affidavit of Raymonde Kelly sworn 9 November 2006 58 It seems to me that the foregoing material is cogent evidence of the intention of both Tara Mines and of the Trustees It is also in my view cogent evidence of the precise manner in which the Deed which was entered into by the parties whose intention is relevant the Company and the trustees failed to express their mutual intention 59 The evidence on behalf of these parties is to my mind quite clear free of ambiguity and consistent with their actions These actions indeed manifest several outward expressions of the intention which they say they formed although I agree with the learned trial judge that further evidence of outward intention is unnecessary though it may be much to be expected in cases where there is other cogent evidence of intention 60 I repeat not for the first time the fact that the witnesses whose evidence is quoted were not cross examined or on behalf of the representative defendant I do so because I think it to be a salient feature going to the weight of the evidence 61 It appears to me that to some extent the learned trial judge addressed herself to an issue which was not the issue in these rectification proceedings the issue of what was or was not agreed between the parties to the industrial relations discussions which predated the amendment to the Deed While this is undoubtedly part of the narrative in the broader picture of the dealings between the Company the trustees and certain groups of workers and their trade unions it does not appear to me to be an issue in the present proceedings The representative defendant did not counterclaim that if the Deed fell to be amended it damaged the position of those whom he represented and indeed it is hard to see how that case could have been made But the present case relates to the question of whether the Deed entered into properly expressed the intentions of the Company and of the trustees who are parties to the Deed and not any broader question involving other persons or interests 62 I consider that there is ample evidence unchallenged in any relevant respect as to the intention of the Company and of the trustees and that it establishes that the Deed did not express that intention I would therefore grant a rectification in the terms claimed 2010 IESC 62 THE SUPREME COURT 104 2007 Hardiman J Macken J McKechnie J IN THE MATTER OF THE TARA MINES PENSION PLAN Between BOLIDEN TARA MINES LIMITED Plaintiff Appellant and FRANK COSGROVE TADG FARRELL CHRISTOPHER GORMAN JOHN KELLY PETER MULLIN ALAN BROXSON IRISH PENSIONS TRUST LIMITED and BY ORDER MICHAEL SHEILS Defendants JUDGMENT delivered by Mr Justice Hardiman on the 21st day of December 2010 1 This is an appeal from the judgment of the High Court Finlay Geoghegan J delivered on the 9th March 2007 and of the order of that Court perfected the 14th March 2007 The effect of this judgment and order was to dismiss all of the plaintiff s claims 2 The scope of the plaintiff s claim is now considerably narrowed and on the hearing of this appeal was confined to a claim for rectification of paragraph D of the Deed of Amendment by the insertion after the word member where it first appears of the following words namely other than a member receiving a benefit under the Employers Income Continuance Plan as of the 20th February 1998 so that the definition of pensionable salary in the Schedule to the Rules shall then read as follows Pensionable salary shall mean the members annual rate of basic salary less an amount to be determined by the Employer but not exceeding 1½ times the annual rate of the retirement pension attributed to a single person payable under the Social Welfare Acts provided in the case of a member other than a member receiving benefit under the Employers Income Continuance Plan as of the 20th February 1998 whose benefits are being calculated by a reference to a date on or after the 20th February 1998 it shall be his annual rate of basic pay excluding overtime bonuses or other fluctuating emoluments provided further in the case of a member in the category of employment of direct miner it shall be 1 25 times such annual rate of basic pay Background 3 As appears above this case is about the Plaintiff Company s pension scheme This has been twice amended in 1996 and in 1999 These amendments relate to the meaning of the term pensionable salary This action relates to an amendment effected in the latter part of the year 1999 4 The Company operates a pension scheme for its employees The benefit of this scheme also applies to former employees who are drawing benefits from one of the Company s two Income Continuance Plans These two Plans may for practical purposes be treated as one as the learned trial judge did 5 Under the terms of the Income Continuance Plan an employee may be accepted into this Plan by reason of disability from working If this happened he received after a deferral period an income benefit which was subject to periodic medical assessment Subject to such assessment the benefit continued to be available until the age of 65 A person who derived the benefit from this plan had his employment terminated but by reason of the terms of the Pension Plan was deemed to be an active member of that Plan so that at the appropriate age he could draw a pension A percentage of an Income Continuance Plan beneficiary s pensionable salary at the date of acceptance into the Plan was paid to the Pension Plan 6 Accordingly for practical purposes a disabled employee s years spent in receipt of the benefit under the Income Continuance Plan were considered for Pension Plan purposes as years of service with the Company 1991 dispute 7 A dispute arose about the year 1991 as whether the annual compound increase of 5 provided under the Income Continuance Plan should apply also to a beneficiary s salary for the purpose of computing pension benefits This dispute was referred to the Labour Court and was the subject of a recommendation to the effect that the Company s offer to increase the basic salaries of Income Continuance Plan beneficiaries be used for pension purposes in line with the increases granted to the grade or category in which they were working when they went on the Income Continuance Plan benefits This was in lieu of the 5 compound increase which had been claimed by the Union The 1999 Amendment 8 This Deed of Amendment forms an essential part to the background of the present dispute The background to it goes back to about 1996 The Company is a zinc producer and in that year was in a poor and worsening competitive position It appears to have been agreed that major changes were necessary if the Company was going to survive 9 In July 1996 a Plan called Tara 2005 was introduced but was not acceptable to the employees Following recourse to the Labour Relations Commission a Joint Working Group was created and this started work in March 1997 This in turn recommended a joint strategy be agreed between management and Unions to implement a new scheme of work organisation specific to the Company 10 A further body the Joint Steering Committee was established in June 1997 to implement the change process identified in the Joint Working Group s report This report had identified the Pension Plan as a major issue Accordingly the Joint Steering Committee appointed yet another body the Pensions Project Group to investigate the Pension Plan and report back 11 This group presented a final report on the 18th July 1997 Its proposals related to changes to the definition of pensionable salary indexation funding normal pension date and the identity of trustees 12 The proposal as to the definition of pensionable salary substantially involved the elimination of integration i e an end to the practice of making a deduction from the basic salary for pension purposes to represent the amount based on the Social Welfare Pension available to a single person 13 The Joint Steering Committee is said to have agreed proposals on the 25th November 1997 These are set out at para 15 of the judgment of the learned trial judge These proposals were approved by the employees in January of 1998 They were also approved by the Company in a manner which is not precisely clear though the fact of approval cannot be gainsaid and no attempt do so was made 14 The proposals agreed by the Joint Steering Committee extended to the following matters 1 The elimination of integration 2 An increase in the direct miners pensionable salary to 1¼ times basic salary 3 An extra supplement to be paid in the form of a bridging pension between the ages of 62 and 65 years 4 A reduction in the compulsory retirement age to 62 years 5 Member trustees to be elected to the Board of Trustees of the Scheme 15 Following these approvals in March 1998 a meeting was held between representatives of the Company and of Irish Pensions Trust The changes proposed to the Pension Plan were reviewed at that meeting Subsequently a notice was prepared by Irish Pension Trust addressed to all active employees as of the 20th February 1998 outlining what were described as Pension Plan Improvements 16 A year later in March 1999 Mr Alan Doherty of Irish Pensions Trust gave instruction to that Company s legal department to prepare documentation to amend the Pension Deeds and Rules to reflect the agreed changes 17 The 1999 Deed of Amendment was executed under seal by both the Company and Irish Pension Trust and is dated the 19th October 1999 18 New trustees were subsequently appointed Background to the proceedings 19 A Mr Oliver Hilliard was originally the eight named defendant and is described as the representative defendant This means that he is a representative of the class of beneficiaries of the Pension Plan who would be affected by the amendment He has now been replaced by Mr Sheils 20 Mr Hilliard was an employee of the Company who left its employment in 1988 aged 51 He achieved his 65th birthday on the 1st July 2002 Later that month he seems to have received information from the new trustees and administrations of the Plan about his pension benefits This led to correspondence between Mr Hilliard and the Pensions Board and between the latter body and the trustees 21 The net point in this correspondence was that integration was being applied to Mr Hilliard s pensionable salary that is for pension purposes his basic salary was regarded as the actual basic salary as provided in the Income Continuance Plan less a sum to reflect the availability of the Old Age Pension After correspondence lasting two years the position of the Company emerged as follows The Trustees and the Company having taken legal advice now understand that the rules of the Scheme as currently constituted do not reflect what was intended The Company are now moving to seek rectification from the High Court to reflect what was intended which if granted will confirm that Mr Hilliard was in receipt of his correct benefits since his normal pension date If rectification is not granted then the trustees will ensure that his benefits are amended immediately and back dated to his pension commencement date Rectification 22 The technical form of the rectification sought in this case has already been set out The effect of this rectification if granted would be that the practice of integration would cease only in the case of those members of the Pension Plan who were in active employment i e not on Income Continuance benefit on the 20th February 1998 or later The only members of the Pension Plan whose benefits will be calculated by a reference to a date on or after the 20th February 1998 and in respect of whom it is contended that the amendment does not apply are those members of the Pension Plan who were Income Continuance beneficiaries on that date Mr Hilliard was within that category at the time of his retirement as the representative defendant and so is Mr Sheils who replaced him in that capacity 23 Rectification was the principal and is now the only relief sought by the Company The law 24 The parties in this case were agreed as to the legal principles applicable to an application of this sort and indeed they had been agreed on these issues in the High Court as well 25 In Irish Pensions Trust Ltd v Central Remedial Clinic 2006 2 IR 126 at para 114 Kelly J considered the nature of rectification and what it required to be shown by someone who claims it He says 114 Rectification permits the Court to correct an instrument which has failed to record the actual intentions of the parties to an agreement It is a discretionary equitable remedy 115 The circumstances in which rectification is available was authoritatively considered by the Supreme Court in Irish Life Assurance Company Ltd v Dublin Land Securities Ltd 1989 IR 253 In that case Griffin J speaking for the Supreme Court adopted the principles outlined by Lord Lowry LCJ in Rooney and McParland Ltd v Carlin 1981 NI 138 At 146 the former Lord Chief Justice of Northern Ireland said i There must be a concluded agreement antecedent to the instrument which is sought to be rectified but ii The antecedent agreement need not be binding in law for example it need not be under seal if made by a public authority or in writing and signed by the party if relating to a sale of land nor need it be in writing such incidents merely help to discharge the heavy burden of proof and iii A complete antecedent concluded contract is not required so long as there was prior accord on a term of a proposed agreement outwardly expressed and communicated between the parties as in Joscelyne v Nissan this last case is quoted elsewhere in this judgment 26 Having adopted this passage Griffin J giving the judgment of the Court proceeded as follows Applying those principles to the facts of this case and bearing in mind the heavy burden of proof that lies on those seeking rectification the question to be addressed is whether there was convincing proof reflected in some outward expression of accord that the contract in writing did not represent the common continuing intention of the parties on which the Court can act and whether the plaintiff can positively show what that common intention was in relation to the provisions which the appellant says were intended to exclude the vacant lands at Palmerstown Evidence 27 The evidence of those witnesses who were officers or employees of the parties to the Deed who swore affidavits in this case which will be summarised below in my opinion shows an unusual degree of cogency and unanimity The case was tried on affidavit and none of the witnesses whose affidavits were relied on by the plaintiffs was cross examined on behalf of the representative defendant Moreover the evidence filed by on behalf of both parties to the Deed was to the same effect the Deed of Amendment does not reflect the intention of either of Tara Mines or of Irish Pensions Trust and ought to be rectified so as to express the actual intention of these parties This was to exclude members in receipt of Income Continuance benefit as of the 20th February 1998 from the entitlement to exclude the deduction in respect of the Social Welfare Pension known as integration 28 Apart from this unanimity in the evidence on behalf of the plaintiff and of Irish Pension Trust there was ample evidence also summarised below that the Company and the Trustees at all material times behaved in their dealings with pensioners and in their statements on the basis that the true position was as they intended it to be This indeed is illustrated in the narrative of events in relation to the original representative defendant Mr Hilliard as appears from the summary above 29 Moreover it is a feature of the evidence that there is a detailed explanation again unchallenged by cross examination from the in house lawyer in Irish Pension Trusts who together with others drafted the Deed of Amendment as to how precisely an error occurred This error gave rise to the situation in which the Deed as executed did not reflect the intention of the parties It is vital to note that this evidence too was unchallenged by cross examination 30 The principal affidavit on behalf of the plaintiff appellant was that of one of its executives Mr Christopher Blake At Para 19 he deposed The principle changes to the pension arrangements arising from the Joint Standing Committee agreement which were embodied in the 1999 Deed of Amendment can be summarised as follows a Integration with the State Pension was to be eliminated for the then active and future members of the work force In effect this meant that the Company s pension plan would no longer take into account any pension paid from Social Welfare in calculating a pensioner s pensionable salary post 20th February 1998 for then active and future members retiring from that date b Direct miners pensionable salary was increased to 1 25 times basic salary c On retirement at age 62 a bridging pension would be paid to age 65 referable to a multiple between one and two times the single person s personal Social Welfare Pension 31 This account was supported by all deponents on behalf of Boliden Tara Mines Limited and Irish Pensions Trust Moreover it was consistent with the documentation created and circulated to the employees around that time for example the communication from Irish Pensions Trust in embodying these changes was addressed to all active employees as at 20th February 1998 It relevant witnesses were not cross examined 32 Similarly an internal I P T memorandum from Mr Alan Doherty to I P T s in house lawyer recorded on the 20th July 1999 Further changes were introduced on 20th February 1998 and again these only apply to active employees and not to those on disability benefit 33 The lawyer in commenting upon a draft produced in house said I am not sure that the draft adequately reflects the fact that the changes introduced as at 20th February 1998 apply to active employees only excluding previous withdrawals and Income Continuance Claimants at that time 34 A meeting of the Joint Steering Committee for the purpose of clarifying aspects of which clarification had been requested was held on the 23rd February 1999 In response to a specific request for clarification of the position of employees on Income Continuance or going on Income Continuance the answer was given they will receive Income Continuance up to the age of 65 and will then receive pension as per the old scheme emphasis added 35 Similarly in I P T s document Brief Outline of the revised Pension Plan eligibility was defined as full time permanent salaried staff and hourly paid employees who have attained the age of 21 36 The minutes of the meeting of the 3rd March 1998 between Tara Mines and IPT i e between the parties to the Deed record at item 6 it was confirmed that the Pension Plan changes will only apply to active employees Announcement letters will specifically include them How the mistake was made 37 By reason of the Constitution of the Pension scheme the consent of IPT as trustee was required to the Deed of Amendment It was not controverted that the intention of the parties to the Deed was to eliminate integration in the calculation of pensionable salaries for employees of the appellant Company as at the 20th

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  • that all of the extradition offences are within the European Framework List That list is set out at p 5 para 1 of the warrant Immediately after that list it is stated citing an English statute that the offence of conspiracy is NOT within the list But three of the four offences in respect of which the forcible delivery of Mr Tighe is sought are offences of conspiracy There is nothing in the warrant aimed at establishing dual criminality in respect of these three offences and having regard to the decision of this Court in Attorney General v Hilton 2005 2 IR 374 it appears that no such dual criminality could in any event be established in terms of Irish Law In that case this Court decided that an analysis of the alleged Common Law offence of cheating the Revenue is such as to lead to the only possible conclusion being that no Irish Common Law offence of cheating the Public Revenue however admirable such a law might be exists Accordingly in terms of the warrant itself the offence of conspiracy to commit the offence specified is not an offence within the European Framework List Neither is it a corresponding offence to any offence in Ireland It appears to me that this very grave difficulty has arisen because the drafters of the warrant presumably the prosecuting solicitors to the Inland Revenue failed to distinguish between the completed offence of cheating the Revenue which might or might not be capable of description as fraud on the one hand and the offence of conspiracy to cheat the Revenue which as the warrant itself proclaims is not within the framework list Notwithstanding this the warrant earlier contains a certificate that all of the offences were on the list The High Court Decision At p 6 of the judgment of the learned trial judge delivered the 28 th January 2009 he recorded The issuing judicial authority in paragraph E i of the warrant has marked fraud and money laundering in the boxes provided for categories of offence coming within Article 2 2 of the Framework Decision This indicates that offence 3 cheating the public revenue is an offence in respect of which double criminality does not require verification and that the offences behind the three conspiracy offences fraud and money laundering are offences coming within Article 2 of the Framework Decision In paragraph E ii of the warrant the issuing authority has indicated that the offence of conspiracy is not covered by the marking of the boxes referred to Therefore correspondence must be established in that regard It is provided in that paragraph that under U K law conspiracy to commit an offence is provided for by s 1 1 of the Criminal Law Act 1977 and the text of the Section is set forth There is no such equivalent provision in this jurisdiction but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy I cannot with all respect agree with this last conclusion of the learned trial judge Conspiracy is legally classified as an inchoate offence of which there are only three conspiracy attempt and incitement The word conspiracy itself simply means agreement though with a connotation of an agreement to do something which the speaker regards as nefarious or unlawful or at least disapproves of It can be seen from the particulars of offence in this case that the actus reus of conspiracy is described as being a specified conspiracy or agreement with others But neither an agreement nor an attempt nor indeed an incitement are criminal in themselves whether at common law or otherwise As Charleton J et al remark in their Criminal Law p 296 There was no general offence of conspiracy at Common Law The relevance of the foregoing remarks arises from what the learned trial judge next said on the topic of conspiracy at p 7 of his judgment Secondly in relation to the conspiracy charges it is necessary to show that in this State conspiracy to commit an offence which itself is an offence here is an offence under the law of the State That requirement is satisfied by the existence here of the offence of conspiracy contrary to Common Law In the case of conspiracy it is necessary in addition either to establish correspondence in relation to the underlying offences or that those offences are offences within Article 2 2 of the Framework Decision The latter has occurred in this case I repeat that conspiracy is not in itself an offence it is criminal only in the context of an agreement to commit a specific unlawful act or perhaps a lawful act by an unlawful means Following the Supreme Court judgment in Hilton cited above it is clear that there is no offence in Ireland of conspiracy to cheat the Revenue This is for the reasons set out in that judgment and in particular at p 380 At the core of the Common Law offence in England is the concept of depriving the Crown The offences cited in the warrant in this case refer to the Crown thus at the expense of the Crown of defrauding the Crown of monies failing to make Crown debts to the detriment of the Crown and thus cheated the Public Revenue This relationship to the Crown is a relevant factor And at p 381 Considering the factors set out above the situation in Ireland as to an offence of cheating the Public Revenue is vague and unclear It appears to have fallen into obsolescence The reference to the effect of cheating the Public Revenue in the Act of 2001 is not so precise as to create an offence an offence which may have ceased to exist prior to the Statute The offence was not utilised in prosecutions over the last 100 years Nor has it been the subject of academic analysis Consequently its constituent parts are not clear This is a critical factor In Criminal Law the constituent parts of an offence should be clear The law must be certain If there is ambiguity it is rendered to the advantage of an accused It is a fundamental principle that the Criminal Law must be clear and certain The constituents of an offence must be clear and certain The possibility that such an offence exists in our Common Law is insufficient clarity of the situation The ambiguity as to its constituent parts is relevant These are most relevant factors It has been the practice that offences of this type have been prosecuted by way of statutory offences This is the modern practice This is a relevant factor I would respectfully adopt the foregoing observations of Denham J cited above from Hilton Moreover the parameters of the offence of cheating the Public Revenue in the United Kingdom itself are notably vague and obscure In this country of course it is a constitutional imperative that the definitions of a crime be sufficiently precise and certain see DPP v Cagney and McGrath 2008 2 I R III which referred to a very broadly drafted statutory offence Reckless Endangerment In that case the Court said at p 34 From a legal and constitutional point of view it is of fundamental value that a citizen should know or at least be able to find out with some considerable measure of certainty what precisely is prohibited and what is lawful Thus in Attorney General v Cunningham 1932 IR 28 O Byrne J said at p 32 in the Court of Criminal Appeal The offence as charged in the indictment is one of maliciously firing into the dwelling house of one William O Donoghue and it seems to us that the proper question for our determination is whether that is at Common Law an indictable offence In considering that question the Court must have regard to the fundamental doctrine recognised in these courts that the criminal law must be certain and specific and that no person is to be punished unless he has been convicted of an offence recognised by law as a crime and punishable as such 35 Equally in King v The Attorney General 1981 IR 233 Kenny J said at p 263 It is a fundamental feature of our system of government by law not by decree or diktat that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law or of offences which created by statute are expressed without ambiguity in my opinion both governing phrases a suspected person and reputed thief are so uncertain that they cannot form the foundation for a criminal offence It may indeed be relevant to quote a passage appearing later in Cagney judgment at p 37 There it is said that considerations relating to the need for certainty and clarity in criminal statutes or law make it undesirable that so vague and open ended a section should be used in circumstances such as those of the present case where the actions of applicants as alleged by the prosecution would clearly constitute and established and recognised criminal offence viz assault in one or other of its variance In those circumstances in my view it is desirable that the obvious offence should be charged There are of course both in Ireland and in the United Kingdom specific statutory offences relating to the Income Tax code including an offence of not making a return of income if one is obliged to do so It may be that the extremely severe penalty said to be available at Common Law is a great attraction to prosecutors I have gained much from a reading of an illuminating article Cheating the Public Revenue by David Ormerod in 1998 Criminal Law Review I The author is now Professor of Criminal Justice in Queen Mary College University of London Under the heading The Scope of the Offence the learned author says It is essential to the proper administration of the Criminal Law that it is capable of being known by all citizens subject to its jurisdiction With most criminal offences it is possible to identify a clear source whether a statute or decided case which provides an accepted definition of the offence The definition of cheating is less clear than many offences in part owing to the heavy reliance even in relatively modern cases on the ancient definitions of the offence The truth of Professor Ormerod s observation is justified by a reading of the reasonably modern cases cited Thus R v Hudson 1956 QBD 252 a case often cited for the proposition that the offence of cheating the Revenue continues to exist takes as its starting point the case of R v Bembridge 1783 22 State Trials I and also refers to East s Pleas of the Crown 1803 and Hawkins Pleas of the Crown which went through eight editions between 1716 and 1824 The learned and redoubtable Lord Goddard LCJ adopted the following approach Are there any cases where it is decided that the propositions of Hawkins and East are no longer good law If it is still good law that cheating the public is indictable then caedit questio However very relevantly to the present discussion even Lord Goddard stopped short of the lengths to which the Common Law of England has been taken in more recent times In the next sentence after that quoted above he said The proposition that all transactions which defraud the Crown are indictable is too wide The Common Law conception of cheat required some form of fraud or deceit to quote the above cited Hawkins cheating was deceitful practices in defrauding or endeavouring to defraud another of his own right by means of some artful device contrary to the plain rules of common honesty Equally the ordinary meaning of the word cheat as it appears from the Concise Oxford Dictionary entry quoted in Charleton is deceive or to trick a person into or out of a thing But in the case of R v Mavji 1987 WLR 1388 the Court of Appeal in England held that the offence could be committed by omission and did not require a positive act of deceit or misrepresentation This is a major and recent extension of the scope of the offence The Mavji formulation clearly contradicts Lord Goddard s observation that it is too much to say that all transactions which defraud the Crown are criminal It would appear therefore that the Common Law of England has changed significantly in this regard between 1956 and 1987 Bearing in mind the decision of this Court in Hilton this is a further reason to conclude that there is no basis whatever for saying that the Common Law offence of cheating the Public Revenue as it is found in England and as far as I am aware only in England has any equivalent whatever in Ireland It thus appears that though the Common Law offence is still extant in the U K and indeed is said in the old books to have existed since the 14 th century and perhaps before it is still capable of evolution and has in fact evolved uniformly in a manner favourable to the Crown and unfavourable to the individual These transformations are all very significant and a court in 1987 went markedly further in relation to the conduct captured by the offence than a great if somewhat uncompromising exponent of the Common Law had felt able to go thirty years earlier Accordingly this cheating the Public Revenue does not seem to me to be an offence which would meet the requirements which exist in Ireland that an alleged criminal offence should be certain and specific in its definition In light of the foregoing it is perhaps unsurprising that Professor Ormerod ends his learned article by recommending the abolition of the offence in the United Kingdom He says There has been considerable pressure to abolish the Common Law offences which still exist in English law The arguments usually on the absence of a maximum sentence the breadth of the offences and the existence of specific statutory prohibitions which criminalise the conduct in question All of these points apply to cheating and create at least as compelling an argument for reform as in the case of conspiracy to defraud The abolition of cheating is long overdue It satisfies neither the Revenue lawyers keen desire for certainty preferably in a statutory form nor the Criminal lawyers desire for maximum certainty in the Criminal law But this of course can be of academic interest only in Ireland However in considering three of the four offences in question here it may not be necessary to debate the question of correspondence because correspondence is not relied upon in the warrant On the contrary it is certified that these three offences are within the list of criminal conduct in the Framework Decision and then later in the warrant that they are not In my view it is uniquely for the issuing State to say whether and if so where in the list of actions set out in the Framework Decision the offence for which they want to put a person on trial is to be found The decision to charge conspiracy in this case was that of the United Kingdom Revenue Authorities and both the conflicting certifications that conspiracy is is not an offence within the Framework Document list is also of their making I would decline to order the delivery of the applicant on these charges The fourth charge The fourth charge described at reference 3 in the list set out above is that of Cheating the Public Revenue contrary to Common Law By virtue of s 11 of the Act of 2003 as substituted by s 72 of The Criminal Justice Terrorist Offences Act 2005 a European Arrest Warrant must set out The circumstance in which the offence was committed or was alleged to have been committed including the time and place of its commission or alleged commission and the degree of involvement of the person in the commission of the offence In relation to this offence the only particulars given are that the appellant between 1 January 1997 and 31 December 2005 cheated the Public Revenue by failing to disclose his income to the Inland Revenue In this case the warrant does not at all specify the circumstances in which this offence is alleged to have been committed The contents of the warrant insofar as this offence is concerned is found at the end of p 4 and the beginning of p 5 and consist entirely of a number of statements of law There is no statement whatever specific to the accused in respect of this offence Remarkably it is not even asserted that he was obliged to disclose his income to the United Kingdom Revenue Commissioners in the first place Unlike the other offences this is a charge of a substantive rather than an inchoate offence Whether an offence corresponds to an offence in Ireland depends on whether the acts constituting the offence as disclosed in the warrant or associated material correspond to an offence in this country This charge is one which has been held not to exist as or correspond to an offence in Ireland see Hilton above The particulars given in the warrant are entirely silent on any question of fraud or any specific deception or misrepresentation The entirely negative offence of failing to make a disclosure of one s income does not fit at all obviously within any of the headings in the Framework Document and certainly not either of the two headings which have been ticked Fraud is not specified as an ingredient of the offence presumably as we have seen above because the U K Courts have held that fraud is unnecessary to constitute it and no information as to the circumstances of the offence are given which would allow one to conclude either that it corresponds to any other offence actually existing in Ireland or that it is within the conduct described in the Framework Document list Conclusion I would refuse to order the delivery of the appellant on foot of the arrest warrant in this case THE SUPREME COURT Murray C J 20 09 Denham J Hardiman J THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM Applicant Respondent and JAMES ANTHONY TIGHE Appellant JUDGMENT of Mr Justice Hardiman delivered the 21 st day of December 2010 This is a European Arrest Warrant case The surrender of the appellant is sought so that he can be prosecuted in the United Kingdom for four offences the extradition offences specified in a European Arrest Warrant which was issued in respect of the appellant by a District Judge Magistrates Courts in the United Kingdom on the 7 th day of March 2008 This European Arrest Warrant was endorsed for execution in this jurisdiction on the 12 th March 2008 and the appellant was arrested on foot of it on the 3 rd April 2008 and brought before the High Court as required by s 13 of the European Arrest Warrant Act 2003 as amended The offences The offences to which this warrant relates are unusual ones at least to an Irish lawyer and as will transpire they are somewhat arcane They are as follows 1 Tax Fraud Conspiracy to cheat the Public Revenue contrary to s 1 1 of the Criminal Law Act 1977 Particular of offence Between 1 January 1997 and 31 December 2005 with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by dishonestly submitting false 715 CIS 24 and CIS 25 vouchers issued pursuant to Inland Revenue Construction Industry Schemes 2 Tax Fraud Conspiracy to cheat the Public Revenue contrary to s 1 1 of the Criminal Law Act 1977 Particulars of offence Between 1 January 1997 and 31 December 2005 with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by reducing the taxable profits of Companies by dishonestly pretending that payments had properly been made to third parties for work purportedly carried out or services purportedly provided 3 Tax Fraud Cheating the Public Revenue contrary to Common Law Particulars of offence Between 1 January 1997 and 31 December 2005 cheated the Public Revenue by failing to disclose his income to the Inland Revenue 4 Money Laundering Conspiracy to enter into or otherwise be concerned in arrangements to facilitate the retention or control of the proceeds of crime of others contrary to s 1 1 of the Criminal Law Act 1977 Particulars of offence Between 1 January 1997 and 31 December 2005 conspired together with others to enter into or otherwise be concerned in arrangements whereby the retention or control of proceeds of criminal conduct of others was facilitated knowing that those others were engaged in criminal conduct namely cheating the Public Revenue In the Arrest Warrant it is certified that the maximum length of the custodial sentence available for the offence of cheating the Public Revenue is imprisonment for life and that in practice these offences if involving large sums of money and deliberate conduct result in sentences approaching fifteen years imprisonment The offence of money laundering has a maximum sentence of fourteen years imprisonment Although the person supplying the information as to length of sentences does not appear to have noticed that three of the four charges relate to conspiracy rather than to a substantive offence it appears that the offence of conspiracy to commit an offence being a Common Law offence carries a maximum sentence of life imprisonment even if the sentence for the substantive offence is much less It is plain therefore that the offences in respect of which the Court has been invited forcibly to deliver the appellant out of the jurisdiction are extremely serious ones whether viewed from the point of view of the Court the appellant or that of the prosecutor It is therefore all the more surprising that little care appears to have been devoted to the drafting of the European Arrest Warrant or it must be said to its scrutiny in this jurisdiction Relevant Law It is notorious that the law relating to the arrangements for the forcible delivery of a person out of this jurisdiction and therefore out of the protective jurisdiction of this Court has been greatly changed by the European Arrest Warrants Act 2003 giving effect in this jurisdiction to the Framework Decision on the European Arrest Warrant and surrender procedure This in itself is a very remarkable document Its recitals suggest that it is the product of a long methodical process of action upon the Tampere Conclusions of 1999 But its history shows that it was in fact agreed in principle in the period of ten days immediately after the notorious terrorist outrage in New York on the 11 th September 2001 Just as strikingly the proposals which were being worked on prior to that epochal event related to terrorist crimes only but in a period of time so short as to allow for very little if any consultation it was decided to extend their effects to a very wide swathe of ordinary crimes But this is history The fact is that effect has been given to the said Framework Document by the Act of 2003 Relevant statutory features Due to the narrow focus of this case it is unnecessary to discuss the Act of 2003 in general It is sufficient to quote certain authoritative passages from the judgment of this Court in The Minister for Justice Equality and Law Reform v Ivans Desjatnikovs 2009 1 IR 618 At para 9 in this judgment under the heading Form of the European Arrest Warrant Denham J says Section 11 1 of the Act of 2003 mandates that the European arrest warrant shall insofar as it is practicable be in the forms set out in the annex to the Framework Decision and shall specify matters as set out therein This includes for example the name and nationality of the person in respect of whom the European arrest warrant is issued As to the offence the requirement is to specify the offence to which the European arrest warrant relates including the nature and classification under the law of the issuing state of the offence concerned It is also required to specify the circumstances in which it is alleged that the offence took place including the time and place and degree of involvement The penalties are required to be stated inter alia Thus a significant amount of detail is required At para 11 of the judgment Denham J set out certain options as follows In this case three options are considered as methods by which an offence may be identified as permitting the surrender of a person on a European arrest warrant These options are a a corresponding offence b an offence on the list in article 2 2 of the Framework Decision in paragraph e of the warrant which is ticked in the appropriate box and c it is submitted that there being no box ticked on the list the executing judicial authority in the requested State may on the facts set out in the warrant hold that the offence is one specified on the list I shall consider these three options separately To anticipate the Supreme Court held in that case that only the first two options had been created by the Act of 2003 so that it is unnecessary for us to consider any further the third option for which the State had contended In the concluding section of the judgment of Desjatnikovs at para 69 Denham J said The Framework Decision and the Act of 2003 have introduced a novel system Firstly the concept of double criminality a corresponding offence may be applied This is the basis upon which extradition has proceeded for many years and is not a new concept However secondly the concept of a list of offences where double criminality need not be found is an entirely new system agreed by the member states in Article 2 2 of the Framework Decision and transposed into our law by the Act of 2003 If the offence is identified by the issuing state then the matter comes within this new legal scheme This authoritative citation may be put into context as follows Ever since systems of extradition have existed States generally required that the offence in respect of which extradition was sought should be a crime both in the requesting State and in the requested State They did not require that the crime should be called by the same name or defined in the same way or that the penalty be the same but simply that the actions alleged should constitute criminal offences in both jurisdictions This was known as the principle of double criminality Offences having this quality were said to correspond At some point immediately after 9 11 the States which became party to the Framework Decision agreed or were deemed to have agreed that this requirement should no longer be necessary in the European Arrest Warrant area They did not however go so far as to say that one could be forcibly delivered from one State within this area to another simply on the basis that the actions were criminal in the requesting State Instead they set out a list replicated below and provided that there could be forcible delivery in respect of conduct criminal in the requesting State at least which corresponded to some entry on the list Some of these are very specific such as the seizure of ships or aircraft but some are extremely vague In the present case it was submitted on behalf of the State that the matters listed are couched not in legal language but in political language and do not constitute a list of offences but rather a list of types of conduct Accordingly the double criminality requirement may be avoided by a requesting State by ticking one or more of the entries on the list and establishing that the conduct alleged against the requested person meets that description The list referred to in the Framework Decision is as follows in the form it takes in the European Arrest Warrant in this case participation in a criminal organisation terrorism trafficking in human beings sexual exploitation of children and child pornography illicit trafficking in narcotic drugs and psychotropic substances illicit trafficking in weapons munitions and explosives corruption X fraud including the affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities financial interests X laundering of the proceeds of crime counterfeiting of currency including the euro computer related crime environmental crime including illicit trafficking in endangered animal species and in endangered plant species and varieties facilitation of unauthorised entry and residence murder grievous bodily injury illicit trade in human organs and tissue kidnapping illegal restraint and hostage taking racism and xenophobia organised or armed robbery illicit trafficking in cultural goods including antiques and works of art swindling racketeering and extortion counterfeiting and piracy of products forgery of administrative documents and trafficking therein forgery of means of payment illicit trafficking in hormonal substances and other growth promoters illicit trafficking in nuclear or radioactive materials trafficking in stolen vehicles rape arson crimes within the jurisdiction of the International Criminal Court unlawful seizure of aircraft ships sabotage Central Point of Fact Against that background it is necessary to look at what is said or certified in the European Arrest Warrant in the present case This European Arrest Warrant At p 2 para e the warrant is said to relate to four offences in total being the four set out above On the following page the following certification is made It is hereby certified pursuant to s 142 6 of the Extradition Act 2003 that a the conduct constituting the extradition offences specified in the warrant falls within the European framework list b the offence is not an extraterritorial offence c irrelevant It will thus be seen that the issuing authority or those on whose application it issued the warrant is not seeking to rely in the warrant on the principle of dual criminality but is certifying that the extradition offences are within the list referred to as the European Framework List and described in the preceding section of this judgment It should be noted that the page numbers quoted are those of the Warrant as presented to this Court The European Arrest Warrant itself is unpaginated in its printed form The list itself is set out at p 5 para 1 of the warrant the two offences ticked are firstly Fraud including that affecting the financial interests of the European Communities within the meaning of the Convention of the 26 th July 1995 on the European Communities Financial Interests And secondly Laundering of the proceeds of Crime Since the present case does not feature any connection with the financial interests of the European Communities the first category relied upon is simply Fraud Next however there occurs a very major inconsistency in the warrant At p 6 at a paragraph which I think is marked II though it is not very easily legible but which occurs immediately under the setting out of the European Framework List the following occurs 11 Full descriptions of offence s NOT covered by Section I above CONSPIRACY Section 1 1 of the Criminal Law Act 1977 Section 1 Conspiracy the offence Paragraph 1 1 Subject to the following provisions of this part of this Act if a person agrees with any other person or persons that a course of conduct shall be pursued which if the agreement is carried out in accordance with their intention either a will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement or b would do so but for the existence of facts which render the commission of the offences impossible he is guilty of conspiracy to commit the offence or offences in question A major conflict The foregoing extracts from the warrant manifest a very serious internal conflict within that important document First it is certified pursuant to a United Kingdom statute that all of the extradition offences are within the European Framework List That list is set out at p 5 para 1 of the warrant Immediately after that list it is stated citing an English statute that the offence of conspiracy is NOT within the list But three of the four offences in respect of which the forcible delivery of Mr Tighe is sought are offences of conspiracy There is nothing in the warrant aimed at establishing dual criminality in respect of these three offences and having regard to the decision of this Court in Attorney General v Hilton 2005 2 IR 374 it appears that no such dual criminality could in any event be established in terms of Irish Law In that case this Court decided that an analysis of the alleged Common Law offence of cheating the Revenue is such as to lead to the only possible conclusion being that no Irish Common Law offence of cheating the Public Revenue however admirable such a law might be exists Accordingly in terms of the warrant itself the offence of conspiracy to commit the offence specified is not an offence within the European Framework List Neither is it a corresponding offence to any offence in Ireland It appears to me that this very grave difficulty has arisen because the drafters of the warrant presumably the prosecuting solicitors to the Inland Revenue failed to distinguish between the completed offence of cheating the Revenue which might or might not be capable of description as fraud on the one hand and the offence of conspiracy to cheat the Revenue which as the warrant itself proclaims is not within the framework list Notwithstanding this the warrant earlier contains a certificate that all of the offences were on the list The High Court Decision At p 6 of the judgment of the learned trial judge delivered the 28 th January 2009 he recorded The issuing judicial authority in paragraph E i of the warrant has marked fraud and money laundering in the boxes provided for categories of offence coming within Article 2 2 of the Framework Decision This indicates that offence 3 cheating the public revenue is an offence in respect of which double criminality does not require verification and that the offences behind the three conspiracy offences fraud and money laundering are offences coming within Article 2 of the Framework Decision In paragraph E ii of the warrant the issuing authority has indicated that the offence of conspiracy is not covered by the marking of the boxes referred to Therefore correspondence must be established in that regard It is provided in that paragraph that under U K law conspiracy to commit an offence is provided for by s 1 1 of the Criminal Law Act 1977 and the text of the Section is set forth There is no such equivalent provision in this jurisdiction but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy I cannot with all respect agree with this last conclusion of the learned trial judge Conspiracy is legally classified as an inchoate offence of which there are only three conspiracy attempt and incitement The word conspiracy itself simply means agreement though with a connotation of an agreement to do something which the speaker regards as nefarious or unlawful or at least disapproves of It can be seen from the particulars of offence in

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  • of this Court in O Brien v Special Criminal Court already cited although that case concerned the equivalent provision in the Offences against the State legislation At the hearing of the appeal Mr Ciarán O Loughlin Senior Counsel on behalf of the appellant relied on that decision as being applicable by analogy to this case 31 O Brien concerned the provisions of section 30A of the Offences against the State Act 1939 and the jurisdiction of the Special Criminal Court 32 Section 30A was inserted in the Act of 1939 by section 11 of the Offences against the State Act Amendment Act 1998 Section 30A 3 is expressed in virtually identical terms with section 10 2 of the Act of 1984 The former provision applies to a person who has been arrested on an earlier occasion pursuant to section 30 of the Act of 1939 but released without charge the latter to a prior arrest detention and release pursuant to section 4 of the Act of 1984 In each case the new arrest which is exceptionally permitted must be effected forthwith 33 The facts in O Brien were somewhat different The applicant was arrested on 6th April 2004 on foot of a warrant pursuant to section 29 of the Act of 1939 and detained pursuant to section 30 on suspicion of having committed the offence contrary to section 21 of the Act of being a member of an unlawful organisation His period of detention was extended by a chief superintendent of An Garda Síochána During that extended period the Director of Public Prosecutions directed that he be brought before the Special Criminal Court and charged with the membership offence Since the day was Holy Thursday arrangements had to be made for a special sitting of that court Once those arrangements had been made the officer in charge of the investigation directed that the applicant be released and immediately arrested pursuant to section 4 of the Criminal Law Act 1997 The applicant was accordingly arrested for charging with the membership offence and taken to a garda station to be detained and he was so detained overnight pending his appearance at the Special Criminal Court at noon on the following day It was envisaged in these circumstances that he would be detained for some fifteen hours before being charged 34 As Denham J noted in her judgment at page 525 the intention manifest in s 30A is that a person on a re arrest in the circumstances of s 30A may not be detained as if it were a first arrest under s 30 In my own judgment I suggested at page 534 that the general purpose of the provision was to prevent abuse by An Garda Síochána by repetitive detention under s 30 in pursuit of the same investigation 35 In O Brien it was a clear part of the garda objective that the applicant would be arrested on the Thursday evening detained overnight in the garda station but not charged until he appeared on the following day at noon before the Special Criminal Court This Court was unanimously of the view that his arrest was not effected for the purpose of charging him forthwith His arrest and subsequent detention were unlawful Thus he was not lawfully brought before the Special Criminal Court on the Friday 36 In my view the appellant s reliance upon O Brien must fail 37 The facts are of course very different In O Brien it was never intended that the applicant be charged following his re arrest on the Thursday evening The Court held that section 4 of the Criminal Law Act 1997 provided a lawful basis for his arrest However section 30A required that in the circumstances of the earlier arrest and detention the fresh arrest had to be for the purpose of charging him forthwith The procedure envisaged was that he be detained overnight in a garda station before being brought before the Special Criminal Court to be charged Thus he was not arrested with the intention of charging him forthwith 38 In the present case the intention was that the garda officer would meet the appellant either at Anglesea Street or Bridewell Garda Station depending on which version was correct and be charged that day It was not envisaged that the charging would take place more than about a half an hour after the arrest The intervention of the printer problem was unexpected It was not part of the purpose The question remains as to whether the purpose of the arrest was that he be charged forthwith given that it was envisaged that there would be a delay of about a half an hour In other words it might be argued that the charge sheet should have been printed and ready so that the appellant would be charged immediately on attendance at the garda station It is not necessary in this case to reach a final conclusion on that point for a reason which I will now explain 39 Birmingham J held that the District Court did not in any event lose jurisdiction by reason of any such delay as was complained of Apart altogether from the issue of delay in charging it has to be remembered that O Brien concerned the procedures for bringing a person before the Special Criminal Court to be charged and tried there The jurisdiction of that court is dependant on the person charged having been brought before the court pursuant to a lawful procedure As was emphasised in the judgment of Denham J section 43 of the Offences against the State Act 1939 provides A Special Criminal Court shall have jurisdiction to try and to convict to acquit a person lawfully brought before that Court for trial under this Act emphasis added 40 I drew attention in my own judgment to the well established proposition that the powers and procedures of the Special Criminal Court were to be interpreted strictly it exercises a special and exceptional jurisdiction Article 38 of the Constitution requires that its procedures be laid down by law 41 The District Court by contrast is a court of summary jurisdiction whose function envisaged by the Constitution is the trial of persons charged with minor offences Birmingham J referred to a well known dictum of Davitt P in State Attorney General v Judge Fawsitt 1955 I R 39 ate 43 The usual methods of securing the attendance of an accused person before the District Court so that it may investigate a charge of an indictable offence made against him is by way of arrest or by way of formal summons but neither of these methods is essential He could of course attend voluntarily if he so wished so far as the exercise of the Court s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured so long as he is present before the District Justice in Court at the material time Even if he is brought there by an illegal process the Court s jurisdiction is none the less effective 42 That statement has been cited and approved in a number of subsequent High Court and Supreme Court decisions It has come to be accepted as a settled principle see McGuinness J in Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 at 421 that the jurisdiction of the District Court to embark upon the hearing of a criminal charge is not affected by the fact if it be the fact that the accused person has been brought before the court by an illegal process In Director of Public Prosecutions v Michael Delaney 1997 3 I R 453 at 457 O Flaherty J held that whether an arrest is illegal or not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge He gave section 49 of the Road Traffic Act 1961 as an instance of the latter Keane J reiterated the same proposition in Director of Public Prosecutions Ivers v Murphy 1999 1 I R 98 when he delivered a judgment in this Court to similar effect He said at page 113 It has been repeatedly pointed out that as a general rule the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact if it be the fact that the accused person has been brought before the court by an illegal process 43 Keane J cited the dictum of Davit P in State Attorney General v Judge Fawsitt already cited above and his own judgment in Killeen v Director of Public Prosecutions 1997 3 I R 218 In his judgment in the latter case he had entered the caveat that where the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights of which the most graphic example is The State Trimbole v The Governor of Mountjoy Prison 1985 I R 550 the court may be justified in refusing to embark upon the hearing No such issue has been raised in the present case 44 In Director of Public Prosecutions McTiernan v Bradley McGuinness then a judge of the High Court heard a case stated from the District Court The accused had been arrested without warrant for an assault contrary to section 2 1 b of the Non Fatal Offences against the Person Act 1997 He came before the District Court for trial on that offence By the time the matter came before the High Court it was accepted that there was no power of arrest without warrant for an alleged offence under that section and that section 4 of the Criminal Law Act 1997 did not confer such a power McGuinness J having cited the authorities which I have already quoted ruled that the District Judge in that case had been correct in entering upon the case before him The answer given to the question posed in the case stated was that in cases where proof of a valid arrest was not an essential ingredient to ground a charge the jurisdiction of the District Court to embark on any criminal proceeding was not affected by the fact that an accused person has been brought before the court by an illegal process and the court should consider whether there had been a deliberate and conscious violation of the accused s rights prior to embarking on the hearing 45 It follows that applying these principles to the present case even if there had been a defect in the way in which the gardaí arrested detained and charged the appellant in particular if there had not been an intention to charge him forthwith after his arrest the jurisdiction of the District Court to try him would not have been affected in the absence of a deliberate and conscious intention to deprive the appellant of his constitutional rights such as what Keane J described as the graphic example of the Trimbole case Thus the District Court had jurisdiction to try the appellant 46 I turn to the ground based on the failure of the gardaí to take possession of the hard drive at the leisure centre or alternatively to download the entire sequence of footage covering the period of the appellant s work shift Under this heading the appellant complains that the failure of the gardaí to seek out and preserve the originals and or copies of all CCTV footage pertaining to these proceedings amounted to a breach of the Garda Síochana s common law duty to seek out and preserve evidence potentially relevant to the issue of the guilt or innocence of the Applicant 47 As I have already recalled Birmingham J thought that requiring the retention of footage where no crime is being committed would be a radical and unwarranted extension of the obligations imposed on the gardaí There is great force in that remark There have at this point been a large number of these so called missing evidence cases The high point of the appellant s case is that the facts of this case come within the scope of the authority of Dunne v Director of Public Prosecutions In that case there was a video recording covering the scene of the robbery at a filling station with which the applicant was charged No copy of the video recording had come into the possession of the gardaí Hardiman J delivering the majority judgment of this Court considered that the gardaí should have taken possession of the video tape McGuinness J agreed with Hardiman J but said at page 309 Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence it would have to be shown that any such evidence would be clearly relevant that there was at least a strong probability that the evidence was available and that it would in reality have a bearing on the guilt or innocence of the accused person It would also be necessary to demonstrate that its absence created a real risk of an unfair trial 48 I entered a dissenting judgment 49 In all of the many missing evidence that have been decided in the past decade Dunne stands out as the only case in which it was held that the gardaí were under a duty to seek out and preserve a particular piece of evidence The courts have not laid any general obligation on the prosecuting authorities to seek out and take possession of items of evidence In the present case the gardaí did in fact take possession by downloading of parts of the relevant footage It is true that they copied only such parts as tended to incriminate the appellant Detective Garda Murray has sworn an affidavit in these proceedings in which he says I viewed the entirety of the footage pertaining to the night in question and selected in company of the complainant the relevant extracts which I directed should be downloaded and saved for use as evidence in the case I am quite satisfied that all relevant portions of the footage were saved and that no portion of the footage which could conceivably be considered material to the guilt or innocence of the Applicant was omitted 50 He later added that the remainder of the CCTV footage for the night in question did not provide evidence which tended to exculpate the Applicant because the remainder of the footage which he viewed showed the appellant going about his normal work and contained nothing material to the case 51 At the time this footage was downloaded Detective Garda Murray had no reason to foresee that the appellant would advance the explanation now advanced He was not of course under any obligation to disclose the line the defence would take Nonetheless it is the fact that at the time the hard drive was being viewed and extracts being selected there was no reason to expect that any parts would be relevant to the trial other than those portraying the appellant taking money from the till The appellant does not disclose in his affidavit what evidence was given by Detective Garda Murray on this point in the District Court or what line was taken in cross examination 52 Before commenting finally on this issue it is important to bear in mind the context in which this issue is raised The appellant invokes the jurisdiction exercised in the line of cases commencing with Braddish and Dunne In written submissions he analyses these and a large number of subsequent decisions His submissions proceed on the assumption that this line of authority is directly applicable to the present case But those cases and all subsequent such cases involved attempts by accused persons to prevent a pending trial for one or more offences As Hardiman J expressed the test for the exercise of that jurisdiction when delivering the judgment of this Court in Scully v Director of Public Prosecutions 2005 1 I R 242 at 257 it is first and last with whether there is a real risk of an unfair trial In the present case the Court is not asked to consider a risk of an unfair pending trial It is invited to quash a conviction not to prohibit a trial 53 I am satisfied that even applying the traditional test of real or serious risk of an unfair trial the appellant falls short The complaint concerning the failure to take possession of or copy the hard drive would involve a significant extension of the obligations of the prosecution authorities It is at best doubtfully covered by Dunne Here as distinct from Dunne the garda had taken possession of what they considered to be the relevant portions of the CCTV footage They cannot be blamed for failing to recover material which they had no reason to believe to be of any relevance to the guilt or innocence of the appellant 54 Finally in order to justify an order quashing an actual conviction the appellant would have to satisfy a different standard It would be necessary to show that the trial was actually unfair to the extent that the respondent District Judge had so departed from proper or fair procedures as to act ultra vires 55 The evidence shows that the learned District Judge heard the evidence of Detective Murray who was available for cross examination and that the appellant called evidence that it was accepted practice that whenever there was a deficit in the cash float the cashier on duty would temporarily make up the cash deficit but that he would subsequently repay himself The hearing of this evidence was all a matter for the trial judge Whether he admitted the evidence of the CCTV footage and whether he accepted any particular piece of evidence was all a matter within his jurisdiction 56 The appellant has not referred the Court s attention to any case in which a conviction was quashed on certiorari by reason of the failure of the prosecution authorities to seek out and retain evidence alleged to be of potential relevance 57 I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT Appeal Number 51 2008 Fennelly J O Donnell J McKechnie J BETWEEN OLIVER WHELTON Appellant And DISTRICT JUDGE CONSTANTINE O LEARY Respondent And DIRECTOR OF PUBLIC PROSECUTIONS Notice Party JUDGMENT of Mr Justice Fennelly delivered the 21 st day of December 2010 1 This is an appeal from an order of the High Court Birmingham J refusing the application of the appellant for judicial review by way of certiorari of his conviction in the District Court on a charge of theft for which he had received a sentence of four months imprisonment suspended It is fair to say that apart from this conviction the appellant had an unblemished record 2 The appellant grounds his application for judicial review and now his appeal on two central complaints 3 He was rearrested as was permitted by section 10 2 of the Criminal Justice Act 1984 but was not charged forthwith as required by that provision hence the District Court did not have jurisdiction to try him 4 His trial was not fair because the prosecution had not made available to him the CCTV footage for the entire of the time relevant to the charge of theft made against him The facts 5 The appellant was employed as a cashier at a leisure centre or amusement arcade in Cork in 2005 His employer suspected theft as a result of what he believed to be a shortfall in takings He reported the matter to the gardaí who commenced an investigation 6 In August 2005 an investigating member of An Garda Síochána attended at the premises In company with the employer he viewed the CCTV footage pertaining to the night in question They selected certain extracts which were downloaded and retained by the gardaí for use as evidence in the case The gardaí did not seize the hard drive of the system They selected only those parts which were incriminating insofar as the appellant was concerned These amounted to some 3 minutes and 36 seconds of footage composed of seven individual clips These clips showed the appellant in his cashier s kiosk on three separate occasions taking currency notes from the till and placing these notes in his left trouser pocket 7 The appellant complains that he was thus unfairly depicted as simply taking money from the till whereas he advanced an innocent explanation That was that staff followed a practice whereby from time to time when the cash float in the till was insufficient to meet a payout to a winning customer employees would lend to the cash float on a temporary basis or would exchange small denominations for large denomination notes The staff members would then repay themselves at a later stage 8 The appellant was arrested on 1st September 2005 He was taken to Bridewell Garda Station in Cork where he was detained under the provisions of section 4 of the Criminal Justice Act 1984 and questioned He was released without charge after a little over three hours 9 The Director of Public Prosecutions DPP subsequently directed that the appellant be charged with theft On 27th October 2005 he was rearrested 10 Detective Garda Murray made a telephone call to the applicant around mid day and informed him of the DPP s direction It was agreed that the applicant should meet by appointment with Detective Garda Murray for the purpose of being charged with the offence that had been directed Although there is sharp disagreement about the reason for the choice of meeting place it is agreed that the garda and the appellant met at about16 30 at Anglesea Street Garda Station in Cork Following a formal arrest outside Anglesea Street Garda Station the applicant was brought by Detective Garda Murray to the Bridewell Garda Station the journey between the two stations taking approximately 10 minutes On arrival at the latter Garda Station the applicant was introduced to Garda Michael Kiernan the member of the station party who was at the time performing the role of member in charge 11 The appellant was not formally charged immediately but was placed in a holding cell for a period of fifty five minutes approximately being the period between 16 50 hours and 17 45 hours The reason for this delay was that the printer which generated the charge sheets was out of order Detective Garda Murray had to return to Anglesea Street to have them printed The effect of this was to prolong by about twenty five minutes the period before the appellant was charged 12 The applicant was then charged with two offences of theft on 21st August 2005 contrary to the Criminal Justice Theft and Fraud Offences Act 2001 One of these was later dropped and is not relevant The appellant was released on station bail to appear before Cork District Court on the 23rd November 2005 13 Detective Garda Murray explained in his affidavit that it is normal practice when a person is re arrested for the purpose of being charged that he or she is placed in a cell while the charge sheets are being printed He said Prisoners in custody are not allowed to roam freely around the Station Birmingham J rightly deprecated any practice whereby persons should be placed in a cell as a matter of routine or as a matter of administrative convenience 14 From the appellant s first appearance in the District Court on 23rd November 2005 the appellant through his solicitors objected to the jurisdiction of the court on the ground that he had not been lawfully charged and detained on 27th October he had not he said been charged forthwith as required by section 10 2 of the Criminal Justice Act 1984 his detention was unlawful and it followed that the court did not have jurisdiction to try him He made written submissions on this point which were considered by District Judge MacGruairc The District Judge delivered a written judgment on 11th January 2006 He rejected the objection to jurisdiction on the basis that the matter should be considered as part of the trial of the appellant 15 When the matter again came before the court on 10th February 2006 the DPP communicated his consent to summary trial pursuant to section 53 1 of the Criminal Justice Theft and Fraud Offences Act 2001 The judge put the appellant to his election pursuant to section 53 1 b and he elected to be tried summarily Thus the prosecution the appellant and the court accepted that the matter was one appropriate for summary trial At the same hearing one of the counts alleging a general deficiency was struck out on the application of the prosecution and the remaining charge was amended to refer only to theft of a sum of money rather than to 700 Finally the District Judge on the application of the solicitor for the appellant made a Gary Doyle order see DPP v Doyle 1994 2 I R 286 requiring the prosecution to furnish details of the evidence upon which it was intended to rely including witness statements and CCTV recordings 16 The matter was adjourned to be heard on 2nd May 2006 17 There ensued correspondence initiated by the appellant s solicitor on 20th February 2006 regarding the CCTV recordings The State Solicitor referred the solicitor to the gardaí who replied following a reminder on 29th March The solicitor was given witness statements and black and white copies said to be of poor quality of stills taken from the CCTV recordings which had been downloaded The solicitor persisted with his demand for a copy of the actual CCTV footage On 4th April he was furnished with short extracts from the CCTV footage In a telephone conversation on 10th April Detective Garda Murray informed the solicitor that the CCTV footage upon which the prosecution would rely was not a continuous uninterrupted recording but rather was what was taken from the computer hard drive 18 In fact the hard drive of the computer was designed to store 2 to 3 months of continuous recording Thus the full record covering 21st August 2005 had been overwritten and was no longer available This and further technical information was furnished to the solicitor in a telephone conversation on 1st May the day before the hearing 19 The respondent commenced the hearing of the case on 2nd May It continued on that day and on 8th 10th and 11th May 20 Inspector Cummins presented the case for the prosecution He indicated from the outset that he would be relying exclusively on the evidence from the CCTV footage The appellant s solicitor conveyed his intention to object to the admission of the CCTV footage into evidence He maintained this objection consistently throughout the trial The prosecution proposed to have this footage played in court The defence objection was that this footage represented clips taken from the hard drive and did not contain a continuous record of the three hour shift worked by the appellant The defence solicitor said that the gardaí should have taken possession of the original complete unedited footage The court was referred to a number of the decisions of this court concerning missing or lost evidence in particular Braddish v Director of Public Prosecutions 2001 3 I R 127 Dunne v Director of Public Prosecutions 202 2 I R 305 McFarlane Director of Public Prosecutions 2007 1 I R 134 The District Judge conducted a voir dire on 8th May concerning the admissibility of the evidence Having heard further argument the District Judge held that the defence had not been prejudiced by the failure of the gardaí to take the entire hard drive into garda custody and to furnish the defence with a copy of the complete and unedited footage 21 Having made this ruling the judge indicated his intention to adjourn the hearing to 10th May for the purpose of viewing the CCTV footage At that point the appellant s solicitor informed the judge that he expected to be instructed to seek judicial review of his decision to admit the evidence called direction in the affidavit 22 On the morning of 10th May the solicitor applied to the judge to stop the trial so as to facilitate an application to be made to the High Court for judicial review of that decision The judge declined to stop the trial in the absence of an order of prohibition He also declined to adjourn the trial for the same purpose 23 The CCTV footage was played in court It was effectively the only evidence incriminating the appellant The appellant called as a witness a fellow employee at the leisure centre to give evidence of the practice of paying funds into the till as a float and later withdrawing it The appellant did not give evidence The District Judge convicted the appellant of the offence charged on 11th May 2006 Proceedings 24 The appellant obtained an order of the High Court Peart J on 15th January 2007 granting him leave to apply for judicial review by way of certiorari of his conviction The grounds may be summarised as follows 1 The appellant was not charged forthwith following his second arrest on 27th October 2005 with the offence of which he was convicted as required in the circumstances of his case by section 10 2 of the Criminal Justice Act 1984 hence his constitutional and convention rights to liberty and to a fair trial were infringed this rendered the charge defective and invalid and the respondent acted ultra vires his jurisdiction whereas he should have discharged the appellant 2 The appellant s right to a fair trial was infringed by the failure of the gardaí to seek out preserve and make available to him the originals and or copies of all CCTV footage pertaining to his case further the respondent contravened the appellant s right to natural and constitutional justice by proceeding to hear the charge against the appellant and to admit the evidence of CCTV footage in the absence of the complete and unedited CCTV footage being taken into garda custody 25 With regard to the first point Birmingham J pointed out that section 10 2 of the Criminal Justice Act 1984 permits the arrest of a person who has already been detained pursuant to section 4 of that Act and released without charge provided that the arrest is for the purpose of charging him with that offence forthwith emphasis added He noted that it was not in dispute that the purpose of the appointment made by Detective Garda Murray with the appellant on 27th October 2005 was that the latter be charged with the offence He referred to the facts and contrasted them with the facts in the case of O Brien v Special Criminal Court 2008 4 I R 514 He noted that the effect of the malfunctioning printer was only to prolong by twenty five minutes the delay in charging the appellant 26 His principal reason for rejecting the appellant s first argument was that the fact that he had been detained in a cell for 55 minutes associated with a delay in charging him did not affect the jurisdiction the District Court to try him He cited the judgments of Davitt P in State Attorney General v Judge Fawsitt 1955 I R 39 and of McGuinness J in Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 27 Dealing with the CCTV issue he accepted that the appellant s solicitor had moved promptly and with great persistence to obtain the evidence However he found the argument for the relevance of the material of which the gardaí did not take possession somewhat unconvincing and contrived He could not see how it could have had the relevance contended for He though that requiring the retention of footage where no crime is being committed would be a radical and unwarranted extension of the obligations imposed on the gardaí 28 Issues as to the weight of evidence and its admissibility were matters for the court of trial He concluded that these were not matters which require or justify intervention of this court by way of judicial review Thus he refused relief on both grounds The appeal 29 The appellant has placed extremely detailed written submissions before this Court in support of his appeal from the judgment of Birmingham J The starting point of his argument on the first point is necessarily that his arrest on 27th October 2005 was unlawful The gardaí had already on 1st September 2005 arrested and detained him using the powers conferred on them by section 4 of the Act of 1984 They had however not charged him arising from that detention but had released him after some three hours Accordingly the provisions of section 10 2 of the Criminal Justice Act 1984 applied to his renewed arrest on 27th October They place restrictions on the subsequent arrest of the same person on suspicion of the same offence The section represents a policy protective of the liberty of the citizen It provided prior to amendment of sub section 1 by the Criminal Justice Amendment Act 2009 1 Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him he shall not a be arrested again for the same offence or b be arrested for any other offence of which at the time of the first arrest the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person s release as to his suspected participation in the offence for which his arrest is sought A person arrested under that authority shall be dealt with pursuant to section 4 2 Notwithstanding anything in subsection 1 a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith 30 The natural and primary point of reference for consideration of the application of section 10 2 is the decision of this Court in O Brien v Special Criminal Court already cited although that case concerned the equivalent provision in the Offences against the State legislation At the hearing of the appeal Mr Ciarán O Loughlin Senior Counsel on behalf of the appellant relied on that decision as being applicable by analogy to this case 31 O Brien concerned the provisions of section 30A of the Offences against the State Act 1939 and the jurisdiction of the Special Criminal Court 32 Section 30A was inserted in the Act of 1939 by section 11 of the Offences against the State Act Amendment Act 1998 Section 30A 3 is expressed in virtually identical terms with section 10 2 of the Act of 1984 The former provision applies to a person who has been arrested on an earlier occasion pursuant to section 30 of the Act of 1939 but released without charge the latter to a prior arrest detention and release pursuant to section 4 of the Act of 1984 In each case the new arrest which is exceptionally permitted must be effected forthwith 33 The facts in O Brien were somewhat different The applicant was arrested on 6th April 2004 on foot of a warrant pursuant to section 29 of the Act of 1939 and detained pursuant to section 30 on suspicion of

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  • purpose is not to charge the person with the offence grounding his rearrest iii at any time pre charge a decision is made not to charge the person with the offence last mentioned the obligation to remain within the section is a continuous one iv at any time pre charge the gardaí relative to that person engage in any activity by act or omission which is not directly and immediately related to charging the arrested person and v the charging is not forthwith even if all of the other ingredients within the subsection are satisfied On the other hand the section clearly applies to a person who i following arrest has been detained pursuant to s 4 2 of the Act of 1984 It is immaterial whether the detention period has or has not been extended and ii is rearrested in respect of any offence so as to charge him with that offence forthwith The offence referred to is not confined to that which caused his arrest in the first instance As above stated the threshold is not as soon as practicable or indeed even as soon as possible The preferred test was deliberately chosen no doubt to minimise the intrusion into one s constitutional right to freedom Given s 4 of the Act of 1984 one can readily see the justification for this Just as the right to liberty has not diminished neither has the necessity to justify its abridgment The legislature confirmed this view as when reacting to O Brien it reaffirmed by retention this requirement of forthwith albeit adding into s 30 A 3 of the Act of 1939 the further option of rearrest for the purpose of bringing the person before the Special Criminal Court as soon as practicable s 187 of the Criminal Justice Act 2006 No amendment to s 10 2 of the Act of 1984 however was made Thus the adverb forthwith is an integral part of the statutory safeguard and in its context must be construed by reference to its plain and ordinary meaning Dictionary definitions can be a guide and in some cases are helpful All of quality offer in most cases several potential meanings for any word search Of necessity this is the purpose of a dictionary It suggests many options but leaves the definitive meaning to the context of the inquirer The definition of forthwith is no different A few examples of its potential meaning include at once immediately instantly promptly quickly directly now like a shot or with no time intervention In my view when this issue of law is raised there must be a finding that on rearrest the person is charged forthwith otherwise s 10 2 of the Act of 1984 is breached I do not agree that a rearrest for the purpose of charging forthwith is sufficient if on the facts the arrested person has not actually been charged forthwith The consequences of the former fail to take account of or give meaning to the very requirement of the subsection On that view once the purpose of the rearrest is to charge forthwith it matters not for how long the actual charge is delayed or the reasons therefore absent any mala fides provided the other elements of the subsection have not been breached That could lead to an abuse of freedom whether deliberately or otherwise The provision was designed to prevent both The adverb forthwith is an adverb of time time present and not time past or time to come It answers the question as to when the arrested person must be charged It qualifies not the purpose of the arrest but the timing of the charge However it must be viewed in context in particular by reference to the provisions of ss 4 and 10 of the Act of 1984 Section 10 2 is predicated on an act of rearrest which depending on circumstances may be pre planned as here or it may be fortuitous or random These variations may occur quite legitimately The section does not deprive the gardaí of the power of detention following arrest if the resulting detention does not breach any requirement of the section including the time element That being so it is difficult to see how a construction demanding instant charge is what the provision envisages To so hold could mean having to charge a person in the most extraordinary circumstances which otherwise could not be justified and might render compliance with the provision impossible as with e g a fortuitous arrest The legislature could never have so intended In my view the time requirement would be satisfied if the arrested person was charged promptly i e with pressing urgency By this I mean a standard or threshold evidently more demanding than as soon as practicable but also more demanding than as soon as possible It is one of imperative exigency Time so to speak is of the essence Such approach seems consistent with authority such as The Queen v Justices of Berkshire 1878 4 Q B D 569 where Cockburn C J stated at p 471 that It is impossible to lay down any hard and fast rule as to what is the meaning of the word immediately in all cases The words forthwith and immediately have the same meaning They are stronger than the expression within a reasonable time and imply prompt vigorous action without any delay and whether there has been such action is a question of fact having regard to the circumstances of the particular case Compliance with the statutory requirement can therefore only be judged by reference to the individual circumstances of each case As adverted to there may well be differences between an absconder who by chance is randomly arrested and others whose whereabouts and availability are well known With the latter the gardaí have virtually total control They can generally decide when and where to arrest With the former they may have none Therefore circumstances are of significance In this case the appellant falls acutely into the former group He turned up by appointment at a given location at a particular time and for a particular purpose His rearrest related to two offences which from a charge point of view had no unusual features Charge sheet no 432096 verifies this It reads That you the said accused defendant did on the 21 08 2008 at Tudor Leisure Centre 28 Marlborough Street Cork in the said District Court area of Cork City District No 19 steal property to wit cash to the value of 700 the property of Eamon O Driscoll contrary to s 4 of the Criminal Justice Theft and Fraud Offences Act 2001 In such circumstances therefore could it be said that given the time frame of one hour and fifteen minutes the appellant was charged forthwith In my view it could not The charge sheet could easily have been printed prior to his arrest and one wonders why this was not done convenience I suspect which in my view is unacceptable as is the offered explanation regarding the printer I note in any event that such explanations account for only twenty five minutes of the period of detention The balance I have no doubt resulted from routine practice casually pursued in a manner quite indifferent to the appellant s liberty That is not sufficient Therefore the appellant was not as the section demands charged promptly or with urgency Such a time frame exceeded the provisions of the statute and consequently the detention of the appellant was unlawful Finally on this aspect of the case I respectfully endorse the following passage of the judgment of the learned trial judge where he said at p 12 For my part I would deprecate any suggestion that persons should be placed in a cell as a matter of routine or indeed a matter of administrative convenience If an individual represents no security risk then I can see no reason why it would be necessary to place him in a cell and why he could not be simply left to await developments in the public area of the station I entirely agree with this observation It would be an entirely unacceptable situation if a person s liberty was denied purely by way of policy or for convenience when the purpose of his presence can be otherwise addressed The Jurisdictional Point In The State Attorney General v Judge Fawsitt 1955 I R 39 at 43 Davitt P when discussing methods by which the attendance of an accused person before the District Court can be secured said He could of course attend voluntarily if he so wished so far as the exercise of the Court s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured so long as he is present before the District Justice in Court at the material time Even if is brought there by an illegal process The learned President quotes from Hawkins Pleas of the Crown 8 th Ed 1824 vol 2 at p 420 in support of this proposition where the justification offered was that the law will not so far regard a slip in the process as to let the defendant out of court in order only to have him brought in again in better form He also referred to the case of R v Hughes 1879 4 Q B D 614 which Denham J in Director of Public Prosecutions Ivers v Murphy 1999 1 I R 98 at 107 saw as being the case upon which a body of Irish precedent has been built 42 That was a case where the accused was a police constable who illegally procured a warrant for the arrest of a person called Stanley upon a charge of assaulting and obstructing him in the discharge of his duty Upon this warrant Stanley was arrested and at his trial the accused gave false evidence against him As a result the justices convicted and sentenced Stanley to imprisonment The accused was afterwards indicted for perjury He defended himself by asserting that the proceedings in which he had sworn were coram non judice as the justices had in the circumstances no jurisdiction to try Stanley That plea was ultimately rejected In his judgment Lopes J said at p 622 I think the warrant in this case was mere process for purpose of bringing the party complained of before the justices and had nothing whatever to do with the jurisdiction of the justices He continued by declaring that it mattered not whether Stanley was summoned brought by warrant came voluntarily was brought by force or under an illegal warrant Based on such authority Davitt P so decided in Fawsitt 43 Since then the issue has not only been touched by authority but is now governed by a series of decisions which repeatedly and all to one voice have held with the rule or principle outlined in Fawsitt In Attorney General McDonnell v Higgins 1964 I R 374 at 391 Kingsmill Moore J said Neither summons nor warrant to arrest consequent on the information confer jurisdiction They are merely processes to compel the attendance of the person accused of the offence It is equally clear that if a person is in Court voluntarily or involuntarily legally or illegally an information or complaint may be made there and then ore tenus to the Justice accusing such person of having committed a summary offence and if the information contains the necessary ingredients the person may at once be charged with the offence Reference was made to Reg Daly v Justices of County Cork 1898 2 I R 694 where once again relying on Hughes Gibson J said much the same The fact that Higgins was not a case of arrest and detention but one of procedural amendment hardly takes from it In any event there are several other decisions to like effect including Director of Public Ivers v Murphy 1999 1 I R 98 The State Lynch v Ballagh 1986 I R 203 Director of Public Prosecutions v Michael Delaney 1997 3 I R 453 and Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 Therefore as a matter of principle the position seems well established and at least from my researches does not appear to have been challenged This rule is not absolute and as cases have shown the exception list is not closed It is however limited where the issue is whether the validity of the preceding process may impact upon jurisdiction To this of course may be added circumstances where it is alleged that during the process evidence has been obtained by either illegal or unconstitutional means Such cases are not jurisdictional cases but cases of evidential admissibility Habeas corpus applications and civil proceedings for damages are likewise not material The following are examples of where a preceding process may impact on jurisdiction a where there has been a deliberate and conscious violation of one s constitutional rights Keane J in Killeen v Director of Public Prosecutions 1997 3 I R 218 at 228 to 229 said W here the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights of which the most graphic example is the The State Trimbole v The Governor of Mountjoy Prison 1985 I R 550 the court may be justified in refusing to embark upon the hearing b where the relevant conduct is of such a nature as to outrage insult or defy the legal or constitutional authority or status of the court McCarthy J in Keating v The Governor of Mountjoy Prison 1991 1 I R 61 at 66 said If cases arise where the circumstances of arrest are such as to amount to an affront to the constitutional role of the courts then the District Justice will refuse to proceed with the matter and will discharge the person before him O Flaherty J in Director of Public Prosecutions Ivers v Murphy 1999 1 I R 98 at 104 seems to have inferred the same c where the validity of a preceding event for example an arrest is an essential ingredient to ground a charge upon which an accused person stands before the court See s 49 of the Road Traffic Act 1961 as amended and D P P v Forbes 1993 I L R M 817 46 Apart from the above I have not been able to identify any other example where in like circumstances a successful challenge to jurisdiction has been mounted I remain conscious of Massoud in this context in which the Court undoubtedly prohibited the further prosecution of the applicant on the basis of a prior unlawful detention under s 10 2 of the Act of 1984 However it is not absolutely clear as to whether the jurisdictional point as a point in its own right had been raised Therefore it may be more prudent to exclude that decision from the above list The cases last mentioned could not however have intended to close out an argument if conduct of the type above described was established I therefore take the view that there remains the possibility of future cases identifying circumstances where jurisdiction will be refused These may arise either under the Constitution within a statutory framework or as Convention cases If and when arising each case will have to be considered on its own circumstances It is somewhat surprising to me that the court s approach to process in this context seems somewhat indifferent The rationale set out in Hawkins is to the effect that once in court the preceding method of securing one s attendance is at an end that is the process is over so why concern oneself with it Why insist upon a person s presence legitimately obtained via a non objectionary process No matter how illegal since the object has been secured let the process continue Hughes offers no better rationale I must say that I find this reasoning unattractive The rule of law has a foundation not simply in substantive proceedings but in all proceedings Due process must be protected However the appellant does not make such a case he claims to come within the exception to Fawsitt as referred to at para 44 a supra Therefore further consideration of this point is not presently required The high point of the appellant s case is that at some point between 16 30 and 17 45 on the afternoon of the 27 th October 2006 but prior to charging his detention became unlawful by virtue of non compliance with s 10 2 of the Act of 1984 Therefore his charging was tainted with illegality and consequently neither the charge sheet nor the bail bond were a valid means by which his attendance at the District Court was secured These events which it is alleged were a deliberate and conscious violation of his constitutional rights impacted critically on the jurisdiction of the District Court Hence the relief of certiorari In accordance with the principles outlined above the appellant simply cannot succeed on this point The validity of his arrest or his charging prior to his appearance before the District Court are not prerequisites to that Court having jurisdiction to try him on the theft charge It is no defence on his part to assert that his attendance was secured under pain of penal sanction and was therefore involuntary That very point was disposed of in The State Lynch v Ballagh 1986 I R 203 at 213 where Walsh J dealing with this very point said Even assuming that his presence there was involuntary because of the bail bond of the recognisance the complaint was made there and then and that was sufficient to give jurisdiction to the District Justice in this summary offence There cannot be any credible argument that by virtue of the presenting circumstances there was a deliberate and conscious violation of the appellant s constitutional rights No such conclusion can be drawn from the established case law Therefore the District Court was at all times possessed of jurisdiction to try this offence and in consequence the resulting conviction cannot be set aside 51 I would therefore dismiss the appeal THE SUPREME COURT Appeal No 51 2008 High Court Record No 2006 21 J R FENNELLY J O DONNELL J McKECHNIE J BETWEEN OLIVER WHELTON APPLICANT APPELLANT AND DISTRICT JUDGE CONSTANTINE O LEARY RESPONDENT AND DIRECTOR OF PUBLIC PROSECUTIONS NOTICE PARTY JUDGMENT of Mr Justice William M McKechnie dated the 21 st day of December 2010 On the 27 th October 2005 Mr Whelton the appellant herein was charged with an offence as amended that on the 21 st August 2005 he did steal property to wit a sum of money contrary to s 4 of the Criminal Justice Theft and Fraud Offences Act 2001 Having entered a plea of not guilty he was convicted of that offence on the 11 th May 2006 and subsequently sentenced to four months imprisonment the entirety of which was conditionally suspended An appeal to the Cork Circuit Criminal Court against that conviction remains pending Nothing turns on that appeal in this Court in fact it would only become relevant if the Court was minded to grant an order of certiorari in which case its existence would be a material fact in the discretionary nature of that order On the 15 th January 2007 the appellant obtained leave from the High Court Peart J to seek an order of certiorari quashing both conviction and sentence Although the grounds specified in support of the leave application were numerous they can be distilled into two separate issues It was alleged that i when the appellant was charged the provisions of s 10 2 of the Criminal Justice Act 1984 the Act of 1984 were violated and ii the gardaí failed to retrieve or retain and in any event to make available the complete and unedited C C T V footage of the events and circumstances surrounding this offence By judgment dated the 19 th December 2007 Birmingham J rejected both claims In the notice of appeal to this Court the appellant seeks additional relief to that originally prayed for He now looks for a declaration that his detention on the 27 th October 2005 was unlawful and also that any further continuation of the prosecution against him should be prohibited As such reliefs were neither the subject of the leave order or indeed argument in the High Court I propose to disregard them for the purposes of this appeal Therefore the two live issues relate to the s 10 2 complaint and the C C T V footage complaint I have read the judgment of Fennelly J on the latter point I agree with the entirety of his judgment and I have nothing to add This judgment is therefore confined to the first issue which as I will describe has two aspects to it Save for one area the facts upon which this appeal proceeds are substantially undisputed On the 1 st September 2005 the appellant was arrested without warrant by a member of An Garda Síochána under s 4 of the Criminal Law Act 1997 and thereafter was detained under s 4 of the Act of 1984 on the basis that his detention was necessary for the proper investigation of the above mentioned offence Without any extension of the detention period he was later released without charge On the 27 th October 2005 he received a phone call at about 12 00 midday from the investigating officer advising that he was to be arrested and charged inter alia with the theft offence By prior arrangement he met Detective Garda Murray outside Anglesea Garda Station in Cork at 16 30 on that day He was arrested and conveyed to the Bridewell Garda Station At 16 40 he was detained by the member in charge At 17 45 he was charged with the relevant offence and was then released having entered into recognisance to appear at a future specified sitting of the District Court From arrest to charge the period was therefore about one hour and fifteen minutes Some controversy exists as to whether the arrest location was agreed to or insisted upon by the appellant or was the choice of the investigating gardaí This arises because Detective Garda Murray states that he always intended to have the appellant charged at the Bridewell Station as this was the station where he was originally detained He further says which is denied that prior to arrest he informed the appellant of such decision This conflict at the factual level was not solved and in my view does not require resolution The critical events were the arrest and charge which in law are the responsibility of the gardaí I therefore consider the case by reference to the entirety of the period above described On arrival at the Bridewell Station the appellant was processed by the member in charge in accordance with the custody regulations Criminal Justice Act 1984 Treatment of Persons in Custody in Garda Síochána Stations Regulations 1987 S I No 119 of 1987 and placed in a cell As it happened the printer was out of order with the result that recourse to Anglesea Street Station was required so that the appropriate charge sheet could be printed This necessitated the appellant being detained for a period of approximately twenty five minutes longer than would have been the case but for the malfunction At all times it is said that the detention of the appellant was solely for the purposes of administratively processing the charge which exercise was conducted as expeditiously as possible Under s 10 2 of the Act of 1984 a person in the position of the appellant can be rearrested for any offence for the purpose of charging him with that offence forthwith Para 14 infra It is alleged on behalf of the appellant that by reference to the timescale above outlined he was not following arrest charged forthwith with the theft offence in accordance with section 10 2 The consequent breach of s 10 2 not only rendered his detention unlawful but also deprived the District Court of jurisdiction to try him on the offence upon which he was later convicted Therefore that conviction should be set aside In his judgment Birmingham J refers to the case of O Brien v Special Criminal Court Anor 2008 4 I R 514 in which according to the judge the Supreme Court interpreted the word forthwith as imposing a more exact and stringent obligation than would have been the case if words such as as soon as practicable had been used Having distinguished O Reilly v The DPP Ex tempore Unreported High Court O Neill J 10 th December 2007 the essence of Birmingham J s decision on this point can be found at p 14 of the judgment where it is stated In this case it has been expressly accepted on a number of occasions that the accused was arrested for the purpose of being charged forthwith and while arguably he was not actually charged forthwith he was thereafter charged as soon as practicable Emphasis added It is doubtful in my view if there was any evidence to support the inclusion of the word forthwith in that finding The submissions cannot be relied upon in this regard nor do I interpret them as containing such an admission Rather I read them as outlining what the subsection asserts should be done in contradistinction to what in fact was done Secondly it is quite clear that the test is not as soon as practicable In light of his reference to O Brien para 10 supra Birmingham J could not have intended to convey that impression by the passage quoted The passage however starkly highlights the problem Is there a sufficient compliance with the subsection where a person has been rearrested for the purpose of being charged forthwith but as a matter of court finding has not been actually charged forthwith Emphasis added The second aspect of this issue arises only where a statutory infringement has been established in which event the resulting consequences must be addressed In this case it is said that the District Court had no jurisdiction to try the appellant on the preferred charge Having quoted from The State Attorney General v Judge Fawsitt 1955 I R 39 and having referred to Director of Public Prosecutions v Stuart Clein 1981 I L R M 465 and Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 Birmingham J concluded that absent any question of a conscious and deliberate violation of the appellant s constitutional rights it mattered not how he was brought before the District Court Consequently irrespective of his decision on the s 10 2 point the jurisdiction of the District Court was left untouched as was the validity of the conviction This conclusion adheres to the decision in Fawsitt There are therefore two aspects to this issue As argued before the Court the s 10 2 point preceded the jurisdictional one Following that approach I propose firstly to deal with the interpretative problem Section 10 of the Criminal Justice Act 1984 as amended by s 24 of the Criminal Justice Amendment Act 2009 reads 1 Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him he shall not be arrested again in connection with the offence to which the detention related or be arrested for any other offence of which at the time of the first arrest the member of the Garda Síochána by whom he was arrested suspected or ought reasonably to have suspected him of having committed except on the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that either of the following cases apply namely further information has come to the knowledge of the Garda Síochána since the person s release as to his suspected participation in the offence for which his arrest is sought or notwithstanding that the Garda Síochána had knowledge prior to the person s release of the person s suspected participation in the offence for which his arrest is sought the questioning of the person in relation to that offence prior to his release would not have been in the interests of the proper investigation of the offence A person arrested under that authority shall be dealt with pursuant to section 4 1A 2 Notwithstanding anything in subsection 1 a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith 3 The meaning of subs 2 is essentially one of statutory interpretation Despite an abundance of rules and sub rules as to how a legislative provision should be construed and notwithstanding statutory intervention generally the Interpretation Acts 1937 to 1997 and the Interpretation Act 2005 the basic rule remains the primary rule words should be given their plain ordinary and natural meaning set in the context of the surrounding statutory provision or indeed of the statute as a whole To that may I add the following which are entirely uncontroversial a As this is a penal statute the words must be construed strictly Authority is hardly required for this proposition but if it is The People Director of Public Prosecutions v O Toole Hickey Unreported Court of Criminal Appeal 20 th July 1990 at p 42 dealing with s 4 of the Act of 1984 The People v Farrell 1978 I R 13 and The Emergency Powers Bill 1976 1977 I R 159 where at p 173 it was said that a statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed b It must be presumed that words are neither tautologous or superfluous The legislature must be expected not to have been wasteful in its word use Cork County Council v Whillock 1993 1 I R 231 at 239 c All words must be given a meaning it must be presumed that they were inserted for a purpose Any construction which leaves without a meaning words in a statute will normally be rejected See Maxwell on The Interpretation of Statutes 12 th Ed London 1997 at p 36 Whillock ibid at 237 and Bennion Statutory Interpretation 4 th Ed London 2002 at pp 993 to 994 The context of this provision must be viewed against the right of a person to his freedom and his liberty This right is antecedent to the Constitution It is also enshrined in the Constitution by virtue of Article 40 Therefore this fundamental right in a democratic state governed by the rule of law cannot be affected by unlawful detention Evidently arrest and detention without charge is a significant imposition on this right The position of a person prior to charge is quite different to a person who has been charged The former in addition to his constitutional right to freedom has a right to his good name and his assumed innocence is unaffected even by charge Therefore any intrusion on such right is to be saved only if strictly within the statutory parameters otherwise there will not be a detention in accordance with law Prior to 1984 the gardaí had no power to detain a person for the purposes inter alia of i furthering their investigation of a suspected crime ii formulating a charge or iii conveniently gathering or assembling evidence If they did the person s detention would have been unlawful and save for those situations covered by the Offences Against the State Acts 1939 to 1998 which are not relevant here his immediate release would have been ordered Section 4 of the Act of 1984 conferred for the first time such a power of detention where necessary for the proper investigation of the offence By reference to offences carrying a term of imprisonment of five years or more a person who has been arrested without warrant on suspicion of having committed such an offence can be detained for an initial period of six hours and on the direction of an officer not below the rank of superintendent for a further six hours By virtue of s 9 of the Criminal Justice Act 2006 a further twelve hours may be specified on the direction of a chief superintendent or a person of higher rank In all detention for twenty four hours is now possible under the section with such detention being for the purposes of investigating an offence Consequently this provision is a significant one not only from the gardaí s point of view but also from the subject s point of view It is therefore not at all surprising that one finds a provision such as s 10 also inserted in the same Act That section as its principal rule prohibits the rearrest of a person inter alia for the same offence who previously has been detained on suspicion of having committed the offence and released without charge That prohibition has two exceptions Firstly it can be disapplied on the authority of the District Court when further information has come to light In such cases there is judicial supervision over the grounds upon which the rearrest is sought Secondly subs 2 which requires no judicial intervention permits the rearrest of a person for any offence for the purpose of charging him with that offence forthwith By its terms the offence underlying the rearrest is not confined to that which resulted in the original arrest and detention It may be any offence What is required is that the arrest must be for the purpose of charging him with that offence forthwith It is as to the correct meaning of this phrase in the context of the facts as found that gives rise to the first aspect of the issue being dealt with There are a number of authorities touching upon the interpretation of s 10 2 of the Act of 1984 and a like provision in the Criminal Justice Drugs Trafficking Act 1996 the Act of 1996 As O Reilly v The D P P para 10 supra is under appeal I do not propose to refer to it In Director of Public Prosecutions v Early 1998 3 I R 158 the High Court had to consider the meaning of s 4 5 of the Act of 1996 The scheme of that Act relative to arrest without warrant release without charge and rearrest is similar to that contained in the Act of 1984 Section 4 with modifications not here relevant parallels s 10 of the Act of 1984 Subsection 5 is virtually identical to s 10 2 of the Act of 1984 At p 169 of the report of Director of Public Prosecutions v Early McGuinness J said the following Section 10 2 of the Act of 1984 and s 4 5 of the Act of 1996 permit a further arrest for this purpose to charge the person with an actual offence and for this purpose only It is essential to distinguish carefully and clearly between arrest for the purposes of detention for investigation and arrest for the purposes of charging the alleged offender of bringing him before the court and of initiating the procedure under the Criminal Procedure Act 1967 That observation is undoubtedly correct If the purpose of the rearrest is not to charge the person with an offence then clearly the arrest is not covered by the subsection That point is made in all of the cases some of which I further refer to in a moment However that in itself does

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