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  • quite independent of objective reality In their view a witness can be truthful and reliable although his evidence is totally false in fact The report Mr Byrne s involvement with the Company to which the Inspectors had been appointed concerned two Trusts which he had established or caused to be established many years previously These were referred to as the Prospect Settlement and the Tristan Settlement In relation to these Trusts the Inspectors in summary found as follows 1 That the apparent objective of the Trusts was to transfer ownership of certain assets to a Trust while ensuring that the appellant could retain control of the Trusts 2 That the Trusts as operated did not retain the legal separation necessary to achieve the appellants objectives 3 The funds held by the Trusts in Ansbacher in Ireland were at all times available for any purpose to the appellant Mr Byrne subject only to his duty to retain sufficient deposits to service certain back to back facilities which he had and with the power to apply those funds as he saw fit 4 The control of the Trust funds rested with Mr Byrne 5 The Trusts were a sham 6 Both Trusts were operated as one in the interests of the appellant Mr Byrne It is clear that these findings might be fraught with considerable adverse consequences to the applicant and might grievously damage his reputation Indeed for that reason he was given an opportunity to comment on them by the respondent The Inspectors in their report sometimes expressed themselves in very strong language for example on p 50 That an experienced Trust Company such as Guinness Mahon Cayman Trust approved of such an irregular financial transaction and that Guinness and Mahon accepted the security suggests that both of these institutions viewed these Trusts as a legal fiction It seems evident that both Trusts were operated as one in the interest of Mr Byrne with the knowledge and approval of Guinness and Mahon and Guinness Mahon Cayman Trust without reference to their legal status The challenge The applicant has brought a challenge to these findings on a number of grounds some very far reaching However I propose in this judgment to deal firstly with the radical procedural point outlined above that it is manifest that the veracity of the applicant s evidence was in dispute so that his evidence which was given on oath should have been heard again before all four Inspectors pursuant to the High Court Order of the 25 th May 2001 which order the Inspectors themselves had thought it necessary to procure This point appears to be entitled to primacy for a number of reasons First its significance was apparently acknowledged by the Inspectors themselves in seeking the High Court Order of the 25 th May 2001 Secondly it is a freestanding point and does not appear open to the objection taken by the Inspectors to certain other submissions which will be briefly considered below viz that the applicant is seeking in effect an appeal from the substantive findings and not a judicial review Thirdly this first point if upheld would dispose of the entire case without the need to consider the other points raised since if any part of Mr Byrne s evidence was in dispute the Inspectors had no jurisdiction to report on it without a full re hearing by all four inspectors This is so because of the terms of the Order of 25 th May 2001 which the Inspectors themselves sought and obtained Veracity This term is of central importance in the present case by reason of its employment in the wording of the order of the 25 th May 2001 It is in my view a somewhat unfortunate word It is an abstract term of Latinate origin Words of this sort naturally lend themselves to vagueness and to obscure shades of meaning They provide much scope for special pleading and evasion It might have been easier to say that all four Inspectors would have to hear the evidence if the evidence itself was in dispute However the Order is worded as quoted above and we must therefore explore the term actually used veracity According to the Merriam Webster On Line English Dictionary the two primary meanings of veracity are 1 Conformity to facts accuracy and 2 Habitual truthfulness Its Latin root is the word verus meaning true Accordingly veracity means truth It is clear that in the first of the meanings quoted above the word veracity connotes the accuracy of the account given in the sense of its conformity to fact in the second it expresses a quality of an individual The dictionary cited gives the phrase the veracity of the story as an example of the use of the word in its first meaning and his veracity and character as an example of the second Both of the definitions quoted above seem to be taken word for word from those contained in the Concise Oxford English Dictionary 10 th Edition OUP 2002 In the larger Oxford English Dictionary 2 nd Edition OUP 1989 four definitions are offered viz 1 The quality or character in persons of speaking or stating the truth habitual observance of the truth truthfulness veraciousness 2 Agreement of statement or report with the actual fact or facts accordance with truth correctness accuracy 3 Correspondence with external facts exactness in the indication of these 4 That which is true the truthful statements a truth It will be observed that the definitions at references 2 3 and 4 relate to the objective accuracy of a statement or account while that at reference 1 relates to the subjective truthfulness of the individual giver of that account who must be a natural person Submissions These contrasting definitions provide the basis for each side s contention The applicant at paragraph 11 of his submissions argues that Veracity is not assessed by reference to whether the statement is made sincerely or the witness subjectively is genuinely convinced that what he is saying is the truth Veracity has nothing to do with subjective assessments Veracity is a concept that is intimately bound to notions of objective fact credibility and soundness of reasoning Conversely it has nothing to do with whether an assertion or conclusion is genuinely or sincerely made Of necessity the Inspectors take a diametrically opposite view The word veracity as used in the s 7 4 Order i e as relating to the testimony of a witness cannot reasonably be equated with objective accuracy regardless of whether the concise Oxford English Dictionary suggests so When veracity is applied to the verbalisations of an individual it must relate to the subjective internal belief of a person If that person gives their expression in accordance with that subjective belief they are considered to be truthful This is the first and most basic difference between the parties on this fundamental point The Inspectors also make a second observation They declare that it was at all times accepted by the respondents that the appellant was stating what he believed to be true The learned trial judge noted that the respondents concede that they found the applicant to be a truthful and reliable witness and that they fully accepted his evidence as to the facts Emphasis added In one sense the dispute between the parties can be summed up by asking the following question Is there a distinction between the statement that the Inspectors fully accepted his evidence as to the facts and the statement that the Inspectors fully accepted his evidence Examples of the varying approaches to that question will be given below The word in its context It is important to have regard to the context in which the word veracity as to whose meaning so many subtle distinctions have been drawn was used in the High Court Order of the 25 th May 2001 It will be remembered that an Inspector who was not present when a witness was interviewed was nonetheless permitted to participate in making the report on the condition that The veracity of the evidence given by that witness during the said interview is not in dispute or if the veracity of the evidence given by that witness during the said interview is in dispute that the said interview is conducted in full again with the said inspector or inspectors in attendance It will be observed that this condition centres on the question of whether the veracity of the evidence is or is not in dispute It does not appear to me to centre on the veracity or the habitual truthfulness of the witness as opposed to the evidence which he gives Indeed in the ordinary and natural use of words truth is a quality of an evidential or other account truthfulness is a quality of an individual person This seems to me to me to be a vital distinction Everyone with experience of oral testimony is aware that the truthfulness of a witness may be quite distinct from and irrelevant to the accuracy of his evidence Indeed in A G v Casey 1963 I R 33 which is the leading Irish case in the very fraught area of visual identification it is expressly pointed out that evidence of visual identification by truthful witnesses who had reasonable opportunities for observation has nonetheless often been found to be mistaken In the assessment of oral testimony it is a natural first step to enquire whether the witness is truthful in the sense of wishing to give a true account but one must then go on to enquire whether the truthful witness s evidence is accurate or in conformity with fact since the annals of the law provide numerous examples of where truthful evidence has been factually incorrect because of mistake as in the case of mistaken identification or false memory or the witness having convinced himself that what he wishes to be true is in fact true or for any of a myriad of other reasons If a witness sincerely identifies the wrong man in evidence can that evidence be described as true Having regard to the terms of the Order of the 25 th May 2001 I am of the view that what is relevant in this case is the veracity that is the factual accuracy of the evidence rather than the veracity or truthfulness of the witness There may of course be many cases where no meaningful distinction can be drawn between these two things But this is not one of those cases because the Inspectors themselves while insisting that Mr Byrne is a truthful and reliable witness have nevertheless differed with him on certain vital issues The starkness and simplicity of some of these differences must now be considered Nature of the disputed issues It is necessary first to give some indication of the nature of the issues about which Mr Byrne was giving sworn evidence The two Trusts which the Inspectors were concerned about in their questioning of Mr Byrne gave rise to certain vital questions The first was whether or not Mr Byrne as opposed to the Trustees controlled the two Trusts The second was whether he had the power to enjoy income from either Trust It is undisputed that Mr Byrne stated that he did not control the Trusts or either of them and that he did not have power to enjoy the income from either This was the view of the learned trial judge who stated at p 26 of his judgment that In essence there is no doubt but that the applicant adamantly maintained that he did not control the two Trusts and did not have power to enjoy income from either But the conclusions of the Inspectors on these topics which as set out in the Inspectors written submissions in the present case at pages 2 and 3 included findings that the funds held by the Trusts in Ansbacher in Ireland had at all times been available for any purpose to Mr Byrne who had enjoyed the power to apply these funds as he saw fit and no evidence had been received by the Inspectors which tended to contradict the Inspectors conclusions on control of the funds by Mr Byrne and control of the Trust funds remained with Mr Byrne at all times These conclusions plainly contradict the evidence of Mr Byrne Despite this the Inspectors maintain the veracity of his evidence is not in dispute This remarkable submission is justified by the Inspectors on the basis that Mr Byrne although he did in fact control the Trust and had in fact power to enjoy income from it was nevertheless truthful in saying that he did not control the Trust and did not have power to enjoy income from it The Inspectors maintain that these two absolutely contradictory things are nonetheless both simultaneously true because Mr Byrne was genuine and subjectively truthful in saying that he did not control the Trusts and did not enjoy the power to derive income from it In that sense say the Inspectors his evidence although absolutely wrong was truthful Therefore say the Inspectors the veracity of his evidence was not in dispute It may be significant at this point to recall that the two Inspectors who heard him found Mr Byrne to be a truthful and reliable witness That is he was not merely truthful which is a quality not inconsistent with being wrong but he was also a reliable witness which requires that is testimony is such as can be relied on i e true and convincing The OED 2 nd Ed Defines reliable as trustworthy safe sure I cannot see how any of these words could without perversity be applied to evidence thought to be false in fact To deem someone s evidence to be reliable and then to find it false borders on irrationality This reliable witness said he did not control the Trusts The Inspectors found that he did This reliable witness also said that he did not have power to enjoy income from Trusts But the Inspectors found that he did have this power and did in fact enjoy such income I simply cannot follow how a witness who made these assertions which the Inspectors have found to be quite false can be described as reliable but that is how the Inspectors have elected to describe him Indeed the nature of their case compels them so to describe him because only by doing this can they maintain that the veracity of his evidence is not in dispute It may be salutary to recall at this stage the summary of the Inspectors findings set out above wherein it was held that in relation to the funds held by the Trusts in Ansbacher in Ireland that these funds were at all times available for any purpose to Mr Byrne who enjoyed the power to apply these funds as he saw fit A starker contradiction of Mr Byrne s evidence can scarcely be imagined The High Court decision As mentioned above the learned trial judge fully accepted that Mr Byrne adamantly maintained that he did not control the two Trusts and did not have power to enjoy income from either But he continued It is clear however that this is an expression of belief by the applicant and the respondents did not doubt the truthfulness of that evidence as believed in by the applicant Emphasis added I am not entirely sure what precisely is meant by the passage just quoted I take the last portion of it to mean that the Inspectors thought that the witness Mr Byrne genuinely believed what he said although it was in fact wrong But I have considerable difficulty in accepting that a statement by a very experienced businessman that he did not control two specific Trusts and that he did not have power to enjoy income from either Trust was merely an expression of belief To my mind it was a statement of fact made by this very experienced man who had been involved in Trusts as a settlor for upwards of thirty years Terms of Mr Byrne s evidence At the request of the Inspectors Mr Byrne made a written and unsworn statement about certain of his affairs mentioned to him by the Inspectors This was sent to the Inspectors under cover of a letter dated the 4 th December 2000 Speaking of the Cayman Island Trusts and Trust Companies he said Both Trusts which were established in the Cayman Islands were founded in such a way that they are controlled by the Trustees of the respective Trusts I received legal advice that the trustees of both Trusts which Trusts are governed by Cayman law are under no obligation to accept any instructions from me in relation to the Trusts I do not control the Trusts or the Cayman Companies owned by the Trusts I do not have power to enjoy income from either I have never received or enjoyed any income or benefit from either the Tristan settlement or Tristan Securities Limited or from the Prospect settlement or Prospect Holdings Nor did I have the power to enjoy any such income Emphasis added It is perfectly clear that the findings of the Inspectors quoted above are in direct conflict with these statements At the beginning of the oral examination which was conducted under oath Mr Byrne confirmed p 7 that he approved the statement himself The senior Inspector the late Judge O Leary then asked him Q In other words can I take it that now on oath you are confirming the matters contained in the statement Exhibit I A Yes I am Judge O Leary then commented Alright Fair enough So that saves a lot of time because as I say it is a very helpful statement Exhibit I It seems to me perfectly clear that the central statement in Mr Byrne s unsworn document later expressly confirmed on

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  • or the 31st day of December 1995 had a credit balance of 1 000 00 1 269 74 or more but less than 5 000 00 6 348 69 in a DIRT exempt non resident account or a DIRT liable non resident account with G The order also defined certain words and phrases On the 20th January 2003 by consent it was ordered that paragraphs vii viii and ix of the above order be varied to read the 31st March 2003 in lieu of the 31st January 2003 On the 31st March 2003 without objection from the appellant the above order was varied so as to grant an extension of time in relation paragraphs x xi xii which was given to the 31st May 2003 Also there was an extension of time regarding paragraphs xiii xiv and xv to the 30th November 2003 There were further amendments consented to on the 26th May 2003 and the 5th June 2003 6 The information was provided by the respondents Notice of Motion 7 The respondents brought a notice of motion dated the 9th February 2006 seeking an order that the appellant pay to the respondents the costs of the applications to the court on the 24th June 2002 the 20th January 2003 the 31st March 2003 the 26th May 2003 and the 5th June 2003 as well as the costs of complying with the orders made on those dates High Court Judgment 8 The matter was determined by the High Court O Sullivan J on the 19th December 2006 The learned High Court judge s conclusions included the following I accept that it is an established principle that where a party carries out work at the behest and for the benefit of another the first should be paid the costs and expenses of carrying out that work This principle applies regardless of whether the work is carried out pursuant to a court order as here or otherwise Secondly it appears that the work required to be carried out pursuant to the court orders in this case is more than the respondents would be required to do under the tax code albeit that a significant dispute exists as to how much of the extra work would have had to have been done had the respondents fully complied with their obligations under the tax code in the first place Thirdly I accept that in light of the principle referred to above it would require some clear if not unambiguous counter principle whether by way of statutory provision or otherwise to displace its application Accordingly I turn to consider a number of issues in this context which arose in the course of the submissions In the first place is there anything in s 908 itself which assists The section is silent as to the costs unless subsection 5 which refers to the attaching of proper conditions to the order is intended to deal with them Even if this is the case however in my opinion there is nothing in s 908 itself which is sufficiently clear cut not to say unambiguous to displace the application of the principle already referred to It seems to me that having regard to the specific purpose of s 908 and also having regard to the statutory context in which it finds itself which includes many other powers available to the applicant and specifically and relevantly a power which in effect makes the respondent liable for the direct interest retention tax obligations of its clients in the present circumstances a liability which was paid by way of full and final settlement the true construction of s 908 is that it is not intended to enlarge those other powers and accordingly that the discretion of the court in relation to awarding these costs is a discretion referable only to the four corners of s 908 and not to other collateral issues outside it In practise the discretion would enable the court to consider such matters as whether there was or was not compliance with the order I reach this conclusion in addition to the other reasons stated herein because I think it is important that the power available under s 908 should not be itself fettered or clogged by issues which might interfere with its effectiveness in any given case My view therefore is that the issues now relied upon by the appellant which are extraneous so to speak to the operation of s 908 itself are not appropriate for determination in that context but rather in the context of other procedures available to the appellant The learned trial judge then went on to consider the alternative approach stating It is of course quite possible that I am incorrect in my foregoing conclusion and that Mr Aston is correct contrary to my own view in saying that the court is indeed at large with a full and wide discretion to take into account all the collateral matters upon which the applicant now seeks to rely in order to defeat the respondents right to be paid for complying with the orders I intend accordingly briefly to consider the position on the assumption that I am incorrect in my primary conclusion The learned High Court judge referred to the affidavits filed in the case the fundamental conflict of fact the absence of cross examination and oral evidence He doubted whether the respondents should have the burden of paying the costs even if there was a prima facie case that the respondents have been negligent or even complicit with their customers in defeating the proper operation of the tax law He stated that there were other remedies open to the appellant He noted that a significant portion of the information furnished related to compliant taxpayers He pointed out that the evidence furnished pursuant to these orders was of significant value to the appellant who collected in excess of 16 million from the clients of the respondents on foot of their tax liabilities which were independent of any DIRT liability The learned High Court judge concluded Having regard to the foregoing conclusions therefore my view is that even if I am incorrect in my initial opinion and I should now exercise a wide and full discretion I should nonetheless award the respondents their costs because to decline to do so would be to accept an allegation of fraud and in effect conspiracy to defraud the Revenue which is hotly contested and made out only on a prima facie basis without the benefit of cross examination and which relies on evidence which is only partial The courts have repeatedly insisted that allegations of serious wrongdoing such as fraud or worse must be established with great particularity and specificity so that the court can be firmly convinced that the allegations are true No matter how convincing a prima facie case may appear to be my view is that the comprehensive proofs repeatedly insisted upon by the courts are those which the courts would require in the present case if it were to displace the clear principle that the respondents are entitled to be paid their costs of compliance with the orders of the court Accordingly even upon the basis that my discretion is as contended for by Mr Aston I would have to conclude that the respondents are entitled to the costs they seek Notice of Appeal 9 The appellant filed a notice of appeal dated the 16th February 2007 The grounds of the appeal stated i That the learned trial judge erred in law and in fact in not finding or in the alternative not considering whether the respondents as a matter of public policy should be disentitled to relief by reason of their conduct ii That the learned trial judge erred in law and in fact in finding that the discretion of the Court in awarding cost s on an application made pursuant to Section 908 of the Taxes Consolidation Act 1997 as amended is referable only to the four corners of Section 908 and not to other issues which may otherwise be relevant to the exercise of that discretion iii That the learned trial judge erred in law and in fact in finding that there is an established principle that where a party carries out work at the behest and for the benefit of another pursuant to a court order that the party carrying out that work should be paid the costs and expenses thereof iv In the alternative that the learned trial judge erred in law and in fact in finding that it would require some clear if not unambiguous counter principle to displace the application of the principle referred to in the preceding ground hereof v That the learned trial judge erred in law and in fact in not finding that the onus lay on the respondents to satisfy the Court that in all the circumstances of the application they should be awarded the costs sought vi That the learned trial judge erred in law and in fact in ruling that he could not take into account evidence on affidavit which grounded the application made pursuant to Section 908 of which application the respondents application for costs is ancillary thereto vii That the learned trial judge erred in law and in fact in concluding that if he were to exercise a wide discretion and refuse the application for costs he would have to accept an allegation of fraud and in effect a conspiracy to defraud the Revenue viii That the learned trial judge erred in law and in fact in failing to reach appropriate findings and inferences of fact based on incontrovertible evidence before the Court ix Without prejudice to the generality of the foregoing the learned trial judge erred in law and in fact in not reaching any or some of the following or similar findings or inferences a that the respondents failed to maintain records in accordance with its legal obligations b that there was a significant failure on the part of the respondents to maintain in their respective head offices records that truly reflected information known to and held at branch level in direct breach of their legal obligations c that the respondents through their agents and employees failed to correct their records when they knew or ought to have known that their customers had furnished false declarations of non resident status d that the respondents through their agents and employees knowingly disregarded information pointing to significant abuse of non resident accounts by their customers and e that having regard to all the information in the possession of the respondents whether at their head offices or at branch level that they ought to have known that their customers were using non resident accounts for the purposes of tax evasion x That the learned trial judge erred in fact in finding that the application made pursuant to section 908 of the Taxes Consolidation Act 1997 as amended was an urgent application to which the respondents agreed to have the issue of costs deferred xi That the learned trial judge erred in law and in fact in having regard to whether the application was urgent or whether the respondents agreed to have the issue of costs deferred xii That the learned trial judge erred in law and in fact in taking into account the value to the Revenue of the information obtained on foot of the orders xiii That the learned trial judge erred in law and in fact in taking into account the fact that a significant amount of information obtained related to compliant taxpayers having regard to the purpose and the wording of Section 908 of the Taxes Consolidation Act 1997 as amended xiv That the learned trial judge erred in fact in finding that there were other remedies available to the appellant which are more suited to the resolution of factual disputes than the current application xv In the alternative that the learned trial judge erred in law in taking into account the finding referred to in the previous ground herein in determining whether to award the respondents the costs sought xvi That the learned trial judge erred in law and in fact in failing to have any or any adequate regard to the fact that the substantial portion of the costs of complying with the order arose from the breach by the respondents of their legal obligations or in the alternative of its failure to maintain adequate and accurate records of their customers identities xvii In the alternative that the learned trial judge erred in law and in fact in awarding the respondent all the costs of compliance having regard to the matters referred to in the preceding ground and if necessary not directing an appropriate enquiry Submissions 10 Written submissions were received from the appellant and the respondents and oral submissions were made to the Court on behalf of both parties 11 In concluding the written submissions on behalf of the appellant it was accepted that the work was done at the behest of the appellant and that it resulted in the collection of a substantial amount of unpaid taxes It was also accepted that these are factors to be taken into account by the Court in the exercise of its discretion But it was submitted that these factors must be measured against factors that weigh against granting orders for costs of compliance and of the application In this case not only do such factors exist as outlined in the submissions but they are closely connected to one of the factors on which the respondents most relies namely the extent of the work that had to be carried out In fact the amount of work done and as a result the costs of compliance are directly a result of the respondents failure to maintain proper records and to comply fully with their obligations under s 257 2 of the Taxes Consolidation Act 1997 As a matter of public policy it was submitted that the respondents should bear the cost of their own wrongdoing It was stated that it was possible that a small fraction of the cost may have been incurred even had the respondents been compliant but it is unlikely because in that event people who seek to evade tax would not have been attracted to non resident accounts and hence there would have been no reasonable purpose in the making of the application No other financial institution has been awarded their costs whilst none have applied a number did not seek or obtain an order permitting liberty to apply and it was submitted that it is wrong in principle that the very financial institution that held out the longest in its persistent denials of wrongdoing and seems to be still doing so should be the only one to be awarded its costs 12 On behalf of the respondents in written submissions it was submitted that it was a well established principle of law that where an individual expends money or money s worth for the benefit of another individual at the latter s express or implied request then the first named individual was entitled to the costs and expenses of complying with that request It was submitted that this principle included circumstances where the work carried out is pursuant to an order of a court Reference was made to O C J B v D P C H C S C 1985 1 I R 265 It was further submitted that having regard to the clear principle and the clear benefit accruing to the respondents from the full compliance with that order the respondents are plainly entitled to be paid the costs of complying with the order 13 In oral submissions counsel for the appellant inter alia informed the Court that there was no case where a court has ultimately refused costs however there were seventeen cases where the High Court made orders without awarding costs to the bank in issue In several cases by consent no order as to costs was made Of the fourteen remaining orders seven recite a general liberty to apply and seven recite a liberty to apply in relation to costs However the Court was informed that no other bank has applied for costs in these circumstances Thus it was submitted that there was an error at the commencement of the judgment of the High Court when reference was made to a significant number of similar orders having been made and that in such cases the financial institution had been awarded the costs Counsel submitted that there might be a general principle that when a person is obliged to do work he should get paid Further counsel said that other than the cases referred to previously it was the ordinary practice of the Revenue Commissioners to anticipate the exercise of the Court s discretion and to offer to pay the costs of an order and of compliance But counsel argued the type of case before the Court is different because the need to make the order arises out of the failure of the financial institution to comply with the law 14 Counsel for the respondents addressed the matters in issue in oral submissions also He stressed that the Court has the jurisdiction to order costs and the costs of compliance to be paid under section 908 He noted that this is the first occasion where a party has sought costs and where costs have been resisted He submitted that the respondents had incurred the costs in complying with the orders and should receive a costs order Statute 15 Section 908 provides In this section judge means a judge of the High Court a taxpayer means any person including a a person whose identity is not known to the authorised officer and a group or class of persons whose individual identities are not so known and b a person by or in respect of whom a declaration has been made

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  • it also imposes substantial burdens on the State and it is entirely appropriate that the means of an applicant for legal aid should be established and verified It is also the case that the landmark decision in State Healy v Donoghue 1976 I R 325 has established that legal aid is not required in every case in the District Court and it would be undesirable if it were granted routinely for any matter no matter how trivial Accordingly it is sensible to seek to ensure that legal aid is granted where appropriate and is not abused However in seeking to apply a restrictive test reduced almost to a rule of thumb encapsulated in the two words at risk the respondent was in my view in error 12 While it will be necessary to analyse the statutory and constitutional provisions in some detail later in this judgment it does seem to me that the very fact of the proceedings in the District Court ought to have led the respondent to conclude that even within the somewhat restricted language of the Act of 1962 this was indeed a case of sufficient gravity to justify the grant of legal aid There is something more than odd in a court deciding the entitlement to legal aid by inviting a member of the Garda Síochána to consider if an accused is at risk that another court will or may impose a custodial sentence on the accused if convicted This indirect and coded inquiry is adopted no doubt to avoid the Court becoming directly apprised of any previous convictions the accused may have but in cases where the outcome of this exchange is a refusal of legal aid the process may appear unsatisfactory Furthermore the result reached by the respondent was more than a little anomalous If for example there was a co accused who had elected for trial on indictment of the same offence then there is no question but that such a person would have been entitled to legal aid Similarly if another co accused had previous convictions something which it is undesirable should be discussed in advance of the trial in any event then again on the approach of the District Court it would appear that he or she would have received legal aid in this case But it appears that the fact that this accused had no previous convictions and indeed no court experience led to the conclusion that he should face a trial of this charge of theft by himself In addition although the respondent took a strict approach to the interpretation of the Act of 1962 he nevertheless expressly reserved the prospect of a further application for legal aid even though by s2 2 of the Act of 1962 a decision of the District Court in relation to an application under s2 1 of the Act of 1962 as amended shall be final and shall not be appealable Nor is it easy to reconcile the apparent conclusion that the case was sufficiently important to require or permit disclosure something the unrepresented defendant would be unlikely to know about but insufficiently important to require legal aid I appreciate the desirability of dealing with these issues expeditiously and as long as the system is administered with flexibility and with a significant margin of error there might be few causes for complaint in practice But where as here the regime is applied with some strictness and results in a refusal of legal aid the flaws in the system become more apparent 13 It may well be that to a long serving District Judge a busy practitioner or an experienced garda that this case could be considered a routine District Court matter But for a person who has never appeared in court before and who faces the possibility of conviction for theft an offence of dishonesty with all that that entails for prospects of employment I do not think it could be considered anything other than serious Indeed it is of some significance that Garda Curtin could only observe that while not trivial the charge facing the Applicant is by no means at the more serious end of the scale Emphasis added 14 It is worth considering what would be involved in a professional defence of the case It would be necessary to know that the offence itself was indictable but could be tried in the District Court but only with the agreement of the accused It would be necessary therefore to form some view as to which court would be the most desirable from this accused s point of view If the matter was to proceed in the District Court it would be also necessary to know that an application could be made for disclosure which might inform the accused of the case which he had to meet It might also be necessary to know the extensive law that has grown up in recent years about the significance of CCTV evidence and more particularly its absence Careful consideration would have to be paid to both the legal and factual basis upon which it could be said that the actions of the two women in the Spar shop could be attributed to the applicant In addition to all of these steps a lawyer would have to consider what witnesses would be available for the defence Leaving aside the statutory formula for one moment if the sole question for a court was whether anyone would think this was the sort of case that could be fairly defended by a litigant on their own whilst suffering perhaps from that fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures and is confronted with the might of a prosecution backed by the State State Healy v Donoghue 1976 I R 325 354 then there could in my view be only one correct answer 15 It is apparent that the first named respondent took a simple if strict

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  • sought to vacate the order made by this Court on the 3rd August 2006 for the endorsement of the second warrant and also the order for surrender made subsequently on the 24th November 2006 This application was moved on the basis that the underlying European arrest warrant the second warrant has been cancelled following the discovery that the respondent had been convicted in his absence I adjourned my decision on that application to the date on which the present application was listed and at the commencement of this application I indicated that I would proceed with the application for surrender and include my decision on the Notice of Motion in my judgment on the surrender application I see no reason to make any order vacating the previous orders Mr Kelly suggests that since the question of surrender is in the face of the order dated 24th November 2006 res judicata the Court cannot again decide the question I disagree The present application is free standing on foot of the third warrant The previous order was made in respect of the second warrant That decision is no bar to the present order for surrender being made on foot of the later application Such an order does not contradict any earlier order or decide any issue differently which has already been decided I will make no order on the Notice of Motion dated 14th October 2008 22 As to the issue of the information from the General Prosecutor s Office in Latvia the High Court held My view is that this Court is entitled to accept the information from the General Prosecutor s office It would of course be open to the respondent to seek to adduce evidence which contradicts or even casts doubt on the accuracy of what has been stated but he has chosen not to do so This Court proceeds on the basis of having a high level of trust and confidence in the Republic of Latvia and all its emanations and office holders I am entitled to accept as fact what I am told has occurred Notice of Appeal 23 The appellant filed a notice of appeal stating his grounds of appeal thirteen of which were specific and were as follows i The learned judge erred in law in determining that he was bound to order the surrender of the appellant to Latvia notwithstanding that the relevant European arrest warrant was the third such request for his surrender for the same offences and notwithstanding that there was an extant Order of the High Court in the same titled proceedings for the said offences ii The learned judge erred in law in ordering the surrender of the appellant notwithstanding the prohibition against surrender as contained in part 3 of the European Arrest Warrant Act 2003 and in particular sections 37 and 45 thereof iii The learned judge erred in law in ordering the surrender of the appellant notwithstanding the imprisonment and prejudice suffered by him in respect of his unlawful arrest and detention pursuant to the previous request iv The learned judge erred in law in failing to have regard to the fact that the appellant was not informed about and or was kept in the dark about correspondence received and applications made both in this jurisdiction and in Latvia during the currency of his proceedings and was denied constitutional justice and or he was not afforded fair procedures v The learned judge erred in law in his consideration of abuse of process and or the doctrine of res judicata vi The learned judge erred in law in concluding the European Arrest Warrant Act 2003 applied to the Appellant and in particular he so erred in concluding that the European arrest warrant was duly issued within the meaning of section 10 of the Act Without prejudice to the foregoing the learned judge so erred in failing to properly consider the validity of the European arrest warrant as a matter of Irish law and whether the warrant was duly issued in accordance therewith vii The learned Judge erred in placing the onus on the appellant to prove the applicability of the statute rather than requiring the respondent herein to prove its applicability viii The learned Judge erred in concluding and or implying that in accordance with the mutual recognition of judicial decisions he was obliged to surrender the appellant notwithstanding the failure of the issuing judicial authority to put any information whatsoever before the Court either in the European arrest warrant or otherwise to explain why the previous request was incorrect and why surrender should again be ordered pursuant to the new warrant in the same set of proceedings ix The learned Judge erred in law in concluding he was obliged to give full recognition to decisions made by the courts in Latvia notwithstanding the Latvian authorities failed to give due recognition and respect to the pendancy of proceedings in this jurisdiction x The learned Judge erred in1aw in determining that the failure to accord the Appellant natural justice and fair procedures was insufficient to deny the lawfulness of the fresh warrant upon which his surrender was sought xi The learned Judge erred in law in his consideration of the prejudice suffered by the Plaintiff and in his determination that no substantiated prejudice was suffered by the Appellant in consequence of the new warrant and his rearrest Without prejudice to the foregoing the learned Judge erred in rejecting the deprivation of liberty and the position vis à vis section 45 of the 2003 Act xii The learned Judge erred in law in his assessment of the delay and passage of time and so erred in limiting that consideration to prejudice at trial such that the Appellant s objections could be dismissed in limine In that regard the learned trial judge failed to consider the requirements for urgency stipulated in the 2003 Act and the Framework Decision xiii The learned Judge erred in the manner he considered and determined the relevance of the live endorsement and execution the warrant to the history of the vacation and reinstatement of those Orders 24 In written submissions the grounds of appeal of the appellant were identified as follows i Extant order There was already an extant High Court order for the surrender of the appellant to Latvia in the same titled proceedings and for the same offence ii Denied fair procedures The appellant was denied fair procedures and his surrender is prohibited by Part 3 and in particular s 37 of the European Arrest Warrant Act 2003 iii Warrant not duly issued The warrant was not duly issued within the meaning of s 10 of the Act iv Onus of proof The High Court erred in placing the onus on the appellant to prove the inapplicability of the statute rather than requiring the Minister to prove its applicability v Mutual respect The High Court erred in concluding it was obliged to surrender the appellant on the basis of mutual respect notwithstanding the failure of the issuing judicial authority to reciprocate that respect 25 When the hearing of this case commenced on the 26th October 2010 Mr Micheál P O Higgins S C counsel for the appellant indicated that he was stressing three issues in his oral submissions being i Article 23 and the effect of a previous extant order of the High Court directing surrender of the appellant ii denial of fair procedures and iii an onus of proof issue He indicated that he would abandon the not duly issued point He stated that his main point was that the earlier order for surrender remains extant and acts as a bar to the current proceedings 26 Mr Robert Barron S C counsel for the Minister for Justice Equality and Law Reform the applicant respondent referred to as the Minister addressed this point He submitted that an order on the second European arrest warrant does not prevent a further warrant He pointed out that there was a European arrest warrant which was good on its face for the prosecution of the appellant the High Court was satisfied with the warrant and he submitted that they should be sufficient Counsel submitted that there was no authority for the bare proposition that there could not be two warrants He submitted that the second warrant is spent it could not be re activated especially as the appellant was released on Article 40 on the second warrant He submitted that Article 23 of the Council Framework Decision of 13 June 2002 and especially Article 23 2 does not deal with the situation of any subsequent European arrest warrant He further submitted that there was no bar in the Framework Decision to subsequent European arrest warrants and that there was no bar on the facts of this case Extant Order 27 This case arises on a request on foot of a third warrant This warrant relates to the same offences as the second warrant the history has been set out previously In essence there is a third warrant coming after a second warrant for the same offences on which there was an order of the High Court for the surrender of the appellant an appeal to this Court which was struck out on consent a motion to the High Court and an order of habeas corpus The key to the situation is the order for release under Article 40 4 2 of the Constitution on the 20th February 2007 on the second warrant 28 Article 40 4 2 of the Constitution requires that on complaint being made by any person to the High Court alleging that such person is being unlawfully detained the High Court shall forthwith enquire into the complaint and may order the person in whose custody such person is detained to produce such person in the High Court and to certify in writing the grounds of his detention Having given the person in whose custody he is detained an opportunity to justify the detention the High Court may order the release of such person unless the High Court is satisfied that he is being detained in accordance with the law 29 In this case the High Court ordered the release of the appellant on the second warrant as it referred to the prosecution of offences when it had transpired that he had been convicted in his absence 30 The order of habeas corpus is that the appellant be released It does not state that the High Court order is quashed 31 Counsel for the appellant has argued that since the second warrant is extant that then the time limits provided for by Article 23 of the Framework Decision apply specifically Article 23 2 Article 23 2 provides He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant Counsel submitted that as the order of the High Court on the second warrant is still extant Article 23 2 applies and the process should end ten days after the High Court order on the second warrant Consequently he submitted the process came to an end ten days after the final order on the second warrant 32 This case illustrates an unfortunate history of confusion and lack of communication The European arrest warrant process was introduced to provide for new expedited procedures between member states in place of the previous extradition procedures These new procedures have not worked efficiently in this case 33 While there is no express provision in the European Arrest Warrant Act 2003 as amended referred to as the Act of 2003 for a second warrant to go again it is not expressly excluded I am of the opinion that as long as the procedures are in accordance with the Act of 2003 and that fair procedures have been followed that there is no reason why a second warrant on the same offences could not be issued it would depend on all the circumstances of the case 34 In this case counsel for the appellant submitted that the appellant should have been surrendered within ten days of the order of the High Court of 21st December 2007 on the extant second warrant or not at all He said that he did not have to argue that the State could not issue another warrant but that in this case the Minister was bringing a third warrant when there was an extant order of the High Court on the second warrant 35 While there was an order of the High Court to surrender on foot of the second warrant this was the subject of the court order of habeas corpus and the release of the appellant It is understandable why in logic and practice it was decided not to rearrest the appellant on foot of the second warrant on which he had previously been arrested and then released There is no reason why in the circumstances there should not have been a third warrant issued The issue of second or subsequent warrants was considred in Minister for Justice Equality and Law Reform v Ó Fallúin Fallon 2010 I E S C 37 where Finnegan J giving the judgment with which the other members of the Court agreed stated It is of course part of our jurisprudence that there should not be repeated attempts to procure a conviction E S v Judges of the Court Circuit Court and the Director of Public Prosecutions 2008 I E S C 37 However proceedings under the European Arrest Warrant Acts are not criminal proceedings and the same principles will not apply In the present case the attempted extradition was discontinued without any decision being made Again the European arrest warrant of the 21st June 2004 resulted in an order for the appellant s surrender all issues of law raised by him were determined against him and an order for his surrender made His appeal against the order of the High Court was withdrawn His surrender on foot of that European arrest warrant did not occur solely because of the failure to effect his surrender within the times stipulated in the Acts again there was no decision on any issue which could create an estoppel in the appellant s favour or give rise to res judicata Counsel for the appellant did not draw to the court s attention any issue either in the three judgments delivered in the High Court on the European arrest warrant of the 21st June 2004 or in the judgment in the Supreme Court on the application under Article 40 4 2 which could conceivably give rise to an estoppel or issues of res judicata I am satisfied that neither estoppel nor res judicata arises In the circumstances of this case there has been no decision which could create an estoppel or give rise to res judicata in favour of the appellant 36 Nor in the circumstances does the issue of time limits for surrender arise in relation to the orders on the second warrant The second warrant has been superseded by the third warrant While issues of delay may be a matter of concern in a broad analysis taking the history of this case as a whole the terms of Article 23 of the Framework Decision are now applicable to the third warrant and not to the second In the circumstances as this appeal has been pending they do not arise 37 Further reference was made to s 37 1 of the Act of 2003 Here I would again refer to and apply the judgment of Finnegan J in Minister for Justice Equality and Law Reform v Ó Fallúin Fallon 2010 I E S C 37 where he stated In these circumstances I am satisfied that in bringing a second European arrest warrant the United Kingdom authorities cannot be said to be acting in such a manner as would engage section 37 1 of the Act of 2003 and in particular cannot be said to be acting in breach of the Constitution or the European Convention on Human Rights 38 In all the circumstances I am of the opinion that the history of the case which includes a High Court order and a subsequent enquiry and order pursuant to Article 40 4 2º of the Constitution ordering the release of the appellant on the second warrant is not a bar to the third warrant The obligation of the courts under the Act of 2003 is to surrender the appellant pursuant to the warrant where there has been compliance with the Act The Courts are not given a general discretionary power to refuse surrender A third warrant has been issued and it is the obligation of the courts under the Act of 2003 to surrender the appellant if there has been compliance with the Act In all the circumstances I would dismiss the first ground of the appeal raised on behalf of the appellant Admissibility Decision 39 The second issue stressed on this appeal by counsel for the appellant was the issue of the admissibility of the letter from the prosecutor s office dated the 22nd June 2007 and cited in full earlier in this judgment Counsel for the appellant submitted that because it was not from a judicial authority it should not be admitted and that there was an onus on the Minister to satisfy the court that it should be admitted He argued that it was for the Minister to satisfy the Court that the convictions have been set aside 40 Counsel for the Minister pointed to the letter from the prosecutor He submitted that this is not a case where a fact was in issue He submitted that the learned trial judge was entitled to come to the conclusion which he did Counsel referred to s 20 of the Act of 2005 41 Section 20 of the Act of 2003 unamended provides 20 1 In proceedings to which this Act applies the High Court

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  • the charge against the appellant according to law within the true meaning of the order of this Court Further it is said that the subsequent history of the application supports this approach Since it is clear that the respondent sought a further postponement not only of the new charges but also of the charge in issue the subject matter of a substituted charge sheet this latter further postponement would not have been necessary unless the respondent was himself satisfied that the offence appearing on the new charge sheet was in reality a fresh offence and that the striking out of the charge on the earlier charge sheet was a disposal in law Furthermore it must be the case that the Director of Public Prosecutions was at the time this Court had seizin of the appellant s surrender proceedings in February 2009 considering whether to charge the appellant with further offences in circumstances where s 42 of the Act of 2003 became applicable and according to which the Act specifically prohibits surrender If this Court had been made aware on the 31st January 2009 that the Director was considering further charges against the appellant it is highly unlikely that surrender would have been permitted at all and no postponement order would have been made In the foregoing circumstances the appellant should not have been the subject of an affirmed Order for his surrender by this Court on the 3rd February 2009 having regard to the s 42 argument In such circumstances there was no proper basis for the postponement of the appellant s surrender the postponement has in fact lapsed and the appellant should have been surrendered to the United Kingdom at the latest by the 7th June 2009 The learned High Court judge was wrong to conclude by his judgment of the 16th December 2009 that postponement was proper For the respondent the entire of the foregoing arguments are challenged According to the written submissions the respondent applied to the learned High Court judge to extend the order of postponement to include all offences the Court stating that it was not required to make any further order in respect of the offence specified in the order of this Court of the 3rd February 2009 and the order of postponement granted by the High Court on the 16th December 2009 extended to those other offences In the course of the hearing before this Court Mr Barron senior counsel for the respondent clarified that in fact no application was made to the High Court to further postpone or extend the order of the 3rd February 2009 to the offence originally charged as struck out and substituted on the 27th May 2009 He asked that the Court accept the transcript of the hearing of the 3rd November 2009 in support of his contention that the application made was in respect only of the new offences Apart from that preliminary matter Mr Barron argues that the postponement order of the 3rd February 2009 was referable to a specified offence which is clear from the charge sheet Order 17 of the District Court Rules 1997 Rule 1 provides Whenever a person is arrested and brought to a Garda Siochana Station and is being charged with an offence or where an offence is alleged against a person who is already on remand to the Court and a summons in respect of the offence is not issued particulars of the offence alleged against that person shall be set out on a charge sheet The status of a charge sheet is considered in the case of Attorney General McDonnell v Higgins 1964 I R 374 in which it was stated The charge sheet on which it a complaint or information is entered initiates as a purely police document and the entry of the offences charged is necessary for the protection of the Garda to show that such offences justify arrest and detention in the barracks without warrant Further the question of what is meant by offence in the context of the European Arrest Warrant Act 2003 has been determined in Minister for Justice v S M R 2007 IESC 54 where it was held by this Court that the offence refers to the generic offence with which a person is charged and that the same meaning must be given to the word throughout the Act unless the contrary appears from the context Having regard to the foregoing it is submitted that this Court in its order of the 3rd February 2009 unequivocally refers to an offence contrary to s 246 1 2 of the Children Act 2001 and specifies the particular events which could trigger the end of the postponement being either acquittal or conviction The order is not framed and correctly so by reference to any particular charge sheet As to the contention put forward on behalf of the appellant that the striking out of the charge sheet is one which leads to the determination or disposal of the proceedings counsel argues that such a contention cannot properly flow from the judgment in Kennelly v Cronin supra which made it clear that the striking out of the original charge even in that case was not a disposal as the learned High Court judge in this case had also pointed out Mr Barron also draws the Court s attention to the rule against double jeopardy as being of assistance in assessing the appellant s submissions that the mere striking out of the charge sheet is in effect a disposal of an offence A person cannot be tried for an offence for which they have already been acquitted or convicted and if therefore a strike out of the charge on the charge sheet amounts to an acquittal the prosecution would be precluded in the future from recharging the accused with the same offence Upon the strike out of the charge sheet the appellant was recharged with the same offence on a separate charge sheet Counsel draws the Court s attention to the decision of the High Court in Dunne v Governor of Cloverhill Prison 2008 IECH 1 arising from the striking out of a charge in circumstances where there was a failure to serve the Book of Evidence in good time This decision makes it clear that even if an accused in such circumstances is at liberty the striking out does not preclude the appellant being proceeded against afresh and to another case Carpenter v Kirby 1990 I L R M 794 in which the High Court considered the entitlement of the Director of Public Prosecutions to recharge an accused with the same offence having previously withdrawn a charge due to perceived deficiencies in its wording the High Court Barr J stating that although the order had been made the Director was entitled to recharge the applicant with the same offence Finally as to s 42 of the Act of 2003 is concerned the respondent contends that it has no bearing on the proceedings Insofar as a charge had been laid against the appellant on the 31st January 2009 the section has no effect since the charge already existed Insofar as concerns the charges laid on the 27th May 2009 there is no factual basis for the appellant s contention that the Director of Public Prosecutions was or might have been considering those or any further charges against the appellant on the relevant date namely 3rd February 2009 Conclusion The Postponement Issue It seems to the Court that the starting point for a proper consideration of the legal issues which arise for consideration in this case is Article 24 of the Framework Decision which forms an Annex to the Act of 2003 Article 24 1 states The executing judicial authority may after deciding to execute the European arrest warrant postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or if he or she has already been sentenced so that he or she may serve in its territory a sentence passed for an act other than that referred to in the European arrest warrant By the provisions of Article 24 2 instead of postponing the surrender the judicial authority may temporarily surrender the requested person to the issuing Member State on agreement between the two states made in writing and subject to binding conditions on the issuing Member State The terms of Article 24 of the Framework Decision are transposed into Irish law by the clear provisions of s 18 of the Act of 2003 The provisions of that section mirroring as they do the provisions of Article 24 make clear that the appellant was properly postponed as to his surrender provided that there were charges against him in being at the time when the postponement order was made The logic of this provision is unassailable It would be quite extraordinary if instead of facing charges in the requested State a person the subject of a surrender order would first have to be surrendered to the requesting State since it would follow inexorably that the requested State would thereafter have to set in train a later application for his surrender to take effect at the end of any judicial proceedings or service of a sentence in the issuing State thereby doubling the time effort and expenditure in regularising the charging and disposal of criminal offences in more than one jurisdiction True it is that the Framework Decision permits an alternative by Article 24 2 but it seems clear to me that this is so as to provide for the exceptional or unusual case in which it is considered appropriate or necessary not to postpone surrender I am satisfied therefore there was in principle no difficulty in the learned High Court judge postponing the surrender of the appellant until after the charges assuming they were extant were disposed of by acquittal or conviction and in the case of conviction until after service of any sentence Whether there were extant charges There are two issues for determination under this heading a whether the original charge was no longer before the District Court or had been in law disposed of finally b whether the additional charges were in the contemplation of the Director of Public Prosecutions at the relevant date in this case the 3rd November 2009 The chronology of events is as follows 27th September 2007 European arrest warrant issued 28th September 2007 Appellant arrested 28th November 2007 High Court Surrender Order 13th January 2009 Supreme Court Appeal Hearing 31st January 2009 Domestic charge preferred 3rd February 2009 Supreme Court Judgement 3rd February 2009 Postponement of Surrender Order 27th May 2009 Pending domestic charge struck out and replaced by a new charge 27th May 2009 Additional charges preferred 7th June 2009 Possible expiry of 10 day time limit for surrender 3rd November 2009 Further application for postponement 16th December 2009 Postponement granted The sequence is clear The appellant was originally arrested on the European arrest warrant on the 28th September 2007 and was ordered to be surrendered on the 28th November 2007 He appealed that order to this Court On the 31st January 2009 he was charged with an offence in this jurisdiction to which I will refer in a moment in more detail Because he was facing a charge for that offence this Court postponed his surrender pursuant to s 18 of the Act of 2003 The terms of the Order of this Court made on the 3rd February 2009 postponing his surrender have already been set out A few months later on the 27th May 2009 the appellant was charged with five further offences In relation to the then extant charge this was struck out on that date and a fresh charge laid immediately That charge was in respect of an offence contrary to s 246 1 and 2 of the Children Act 2001 which was exactly the same offence save that there was some greater particularity in the second charge sheet as already explained The appellant did not at any time suggest to this Court that both charge sheets did not relate to the same offence under the same provisions of the above Act The appellant s only objection is based on the following proposition when the first charge sheet in respect of the offence was struck out at the District Court on the 27th May 2009 this constituted a formal disposal of the charge In consequence the postponement order of the 3rd February 2009 came to an end in light of its terms In turn the latest date by which the appellant could have been lawfully surrendered was ten days after the 27th May 2009 and the surrender order not having been executed within the time limited by the Act namely prior to the 7th June 2009 thereupon lapsed The legal basis for the Appellant s argument is founded entirely on the proposition that in law the charge in the District Court was disposed of and that sufficed to conclude that there was no longer any charge before the Supreme Court within the terms of its order of the 3rd February 2009 Mr Peart makes a strong and eloquent argument on that point on the basis it is said of the judgment of McGuinness J in Kennelly v Cronin supra He contends that the striking out of the relevant charge against the appellant on 27th May 2009 amounted to a due disposal of the charges against him according to law With respect I cannot find any support for the argument that a charge or charge sheet which has been struck out and immediately thereafter substituted by a new charge sheet in respect of the same offence precisely the same offence can under the circumstances of this appeal constitutes a determination of the offence against an accused or even a disposal of the charge That is what the appellant asks this Court to accept The postponement order of this Court of the 3rd February 2010 is worded so as to survive until the acquittal or conviction of the Appellant in respect of the stated offence The postponement of the original surrender remained extant where the offence was the subject of an immediately substituted charge sheet in the District Court unless the appellant can establish that he was otherwise acquitted of the offence It seems to me that the starting point is to consider the terms of the Order itself By the Order of the 3rd February 2009 this Court a Postponed the surrender pursuant to s 18 3 of the Act of 2003 on terms b The terms were i The postponement would endure until the date of his conviction or acquittal ii of an offence of wilfully assaulting ill treating neglecting abandoning or exposing a child etc contrary to s 246 1 2 of the Children Act 2001 iii in proceedings entitled DPP at the suit of Sergeant Thomas J Harte v John Richard Murrell iv pending before Dublin District Court iv and would further endure in the event of conviction until he is no longer required to serve any part of any term of imprisonment At the date of the making of that order and subsequently until the High Court postponement proceedings and subsequently again the appellant was a Charged with an offence under the above sections of the Children Act 2001 b in proceedings brought by the DPP at the suit of Sergeant Thomas J Harte against the appellant c pending before the District Court d the date of his conviction or acquittal of the said offence had not been reached I am satisfied that without going further the postponement by the High Court on the 16th December 2009 of the appellant s surrender was wholly lawful and was fully within the ambit of the above Order The only remaining issue therefore which requires to be considered is whether or not the acts which took place and the Orders which were made on the 27th May 2009 affected the above position For the reasons which I now set out I am satisfied that nothing which occurred on that date or subsequently affected the terms of the above Order or indeed the status of the appellant and the above offence with which he was charged On the 27th May 2009 a series of further charges including more serious charges although this does not affect the outcome of this appeal were laid against the appellant The extant offence described above was the subject matter of a specific charge sheet This is as is clear from Attorney General McDonnell v Higgins supra is an administrative document or a purely police document as described in that case used for the purposes of ensuring that appropriate procedures are in place to justify arrest and detention As the learned High Court judge pointed out the particulars of the same offence in respect of which the appellant was charged were more precise and slightly more limited it not being necessary to cite again the manner in which this was evidenced by the second charge sheet The existence of a particularly numbered charge sheet on which details of the offence are recorded does not merge with the offence itself and the substitution of a charge sheet by another charge sheet recording the charge for the same offence cannot bring to an end the offence the subject of an earlier charge sheet On the 27th May 2009 the charge as recorded on the first charge sheet was struck out and immediately substituted or replaced by a charge sheet in respect of precisely the same offence carrying a different charge sheet number The striking out and immediate replacement of one charge sheet with another recording precisely the same offence against the appellant is neither an acquittal nor a conviction nor does it constitute any other form of disposal of an offence with which the appellant had been charged That is so when considering either the

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  • 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 power at all to investigate non Carrickmines I lands in respect of which the appellant s solicitor sought an opportunity to make oral submissions to the Tribunal On the 18th November 2004 a letter from the Tribunal invited written submissions from the appellant s solicitors with a view to considering whether or not further oral submissions would be permitted This was responded to on behalf of the appellant on the 25th November 2004 At the hearing on the 27th November 2004 before the above formal order was made by the Minister in December 2004 but after the Resolution of the Oireachtas counsel for the appellant sought to address the Tribunal on the exercise by it of its discretion under the proposed extended Terms of Reference The essential content of the Resolution did not come as any surprise since the problems created by the existing Terms of Reference and more particularly the absence of any clear discretion concerning the commencement pursuit termination or conclusion of enquiries had been the subject of the above Fourth Interim Report in which the Tribunal had itself requested an amendment to its Terms of Reference so as to grant a broader discretion to it The thrust of the submissions which counsel wished to make had been set out in the above letter of the 25th November 2004 Those submissions advanced a number of arguments about the interpretation of the original Terms of Reference on the issue of vires and also addressed the specific issue of the benefits of any further investigation of the proposed Carrickmines II module having regard inter alia to the time constraints upon the Tribunal the issues involved the likely effect and outcome of matters referred to in the amended Terms of Reference and the likely oppressive effect of this on the appellant all coming within the range of factors or criteria which could be taken into account by the Tribunal in exercising its discretion under the amended Terms of Reference At the outset of the hearing on the 27th November 2004 the Chairman of the Tribunal stated that the Tribunal would not entertain any submissions sought to be made as to how the Tribunal should exercise its discretion In the course of this appeal the written submissions on behalf of the Tribunal state that a decision was made not to entertain any submissions That decision was clearly a considered one The decision as delivered was in the following terms Good morning We have made a decision the tribunal made a decision to allow you make such oral submissions based on your written submissions as you wish to make but with this condition The tribunal is not prepared to hear any submission as to how the tribunal should exercise its discretionary powers provided for in the new Terms of Reference How that discretion is exercised is solely a matter for the tribunal because the tribunal alone has access to the information and documentation which allows it to exercise that discretion It is not a matter on which the tribunal intends taking submissions or hearing submissions from any party It is a discretion which only the tribunal can exercise in its own wisdom and we are quite firm that that is the position and should be the decision emphasis added The Chairman concluded this portion of the Tribunal s ruling by stating So it is for that reason that only we can exercise that discretion and we must do it based on our own wisdom emphasis added Counsel for the appellant objected contending that a party was at an absolute minimum entitled as a matter of fair procedures of administrative law to be heard simply to be heard in relation to that matter He said that his client wished to put before the tribunal so that it may be taken into account and properly taken into account in the overall exercise of its discretion a number of relevant matters The chairman then amplified the Tribunal s position by suggesting that there had always been a discretion on the part of the Tribunal but that there was never an entitlement in our view for any party to make submissions to the tribunal as to why their particular interests should not be sic undergo public investigation Counsel for the appellant replied that the Tribunal appeared to have reduced the role of counsel allegedly representing the role of an affected party to nothing which seemed to make representation a meaningless event The Chairman then stated There are possibly tens possibly hundreds of potential parties not just involved in the immediate public inquiry who if the tribunal was of a mind to hear submissions as to why particular avenues of inquiry should be pursued or closed there are possibly hundreds of individuals who would be equally entitled to come to the Tribunal to make submissions as to why their particular inquiry should not be pursued So we would have a situation where we would spend weeks and weeks just listening to submissions as to why a particular individual should not have to face an inquiry A fresh attempt to make submissions was made on behalf of the appellant on the 8th December 2004 but this also came to nought It is against the foregoing background that the appellant on the 13th December 2004 obtained leave of the High Court to commence these judicial review proceedings The High Court Proceedings The essential content of the High Court claims are set out above as well as the grounds on which leave was granted In his judgment the learned High Court judge referred to the application in the following terms This application arises from the Tribunal s investigations conducted in private public hearings and future proposed public hearings of and concerning certain lands at Carrickmines County Dublin and other lands The Tribunal has engaged in the practice of dividing its inquiries into separate modules and within those modules separate sections or phases The module with which we are concerned is referred to and known as the Carrickmines II and Related Issues Module A helpful note of what the learned judge considered the issues before the High Court to be is also set out in the judgment of Hanna J and is worth repeating The applicant contends that the respondents have acted ultra vires in breach of the requirements of natural and constitutional justice and are in breach of the applicant s constitutional right to privacy and the right to respect for his privacy under Article 8 of the European Convention on Human Rights in that Phases 2 8 of the Carrickmines II Module are outside the terms of reference of the Tribunal The holding of public hearings into phases 2 8 of the Carrickmines II Modules constitutes an unjustified unnecessary and disproportionate invasion of the applicant s right to privacy under Article 40 3 of the Constitution and Article 8 of the European Convention on Human Rights The Tribunal erred in holding that it did not have a discretion under the amended terms of reference not to proceed with the inquiry into phases 2 8 of the Carrickmines II Modules and or in not considering whether to exercise that discretion The Tribunal acted in breach of natural and constitutional justice in refusing to hear submissions from counsel for the applicant as to whether it should proceed with phases 2 8 of the Carrickmines II Modules The respondents dispute all of the foregoing They assert they were acting intra vires The applicant does not enjoy a right to privacy as far as his business and professional affairs are concerned either under the Constitution or the European Convention on Human Rights If he did enjoy such a right then any interference with that right by the State is both proportionate and appropriate The Tribunal had the discretion to proceed to public hearing in The Carrickmines II and Related Issues Module and so notified the respondents on the 3rd November 2003 The applicant has no right to challenge or question the work of the Tribunal during its private investigative phase nor was the Tribunal obliged to hear submissions of counsel in relation to same The respondents say that Mr Finlay was afforded every courtesy with regard to making oral submissions but that he could not question or challenge any matter leading to and including the decision to move into public hearing phase Finally 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 In the High Court it was contended on behalf of the appellant first that the Tribunal had misdirected itself in law and or had acted ultra vires in deciding that it did not have a discretion under its amended Terms of Reference to decide whether to continue or terminate its enquiries into the relevant phase of the Carrickmines II Module and or in failing to consider whether to exercise that discretion Secondly the appellant argued that a correct reading of the amended Terms of Reference makes it clear that it was open to the Tribunal in its discretion to terminate any or all of the Carrickmines II Module by declining to hear Phases 2 to 8 thereof in public or some or other of them Thirdly the Tribunal itself had in its Fourth Interim Report indicated that it considered the existing Terms of Reference did not afford it a discretion as to which particular acts it was required to investigate and report upon The Tribunal had itself requested that the Terms of Reference be amended so as to confer on it an express or actual discretion inter alia i to decide which acts it could investigate and ii to permit it not to pursue a particular line of inquiry or investigation if the Tribunal thought it appropriate not to do so Accordingly the appellant argued that his contentions as to the existence of the discretion as well as its scope were fully justified On his behalf it was finally argued that the Tribunal was in the context of the amended Terms of Reference obliged to hear submissions in relation to the exercise of that discretion if a party affected by the decision wished to make submissions In particular the appellant was entitled to bring to the attention of the Tribunal inter alia matters concerning him which should properly form part of the Tribunal s consideration in determining the manner in which it should exercise its discretion and the appellant had sought to do so but had been wrongly refused a hearing As to the claimed right to be heard the Tribunal submitted that in declining to entertain submissions from the appellant s counsel the Tribunal did not infringe any natural or constitutional justice right because pursuant to the applicable legal principles as established in case law and as applied to a Tribunal of Inquiry a person who will be called as a witness has no entitlement to make any submissions to the Tribunal concerning the exercise by it of its sole discretion in the investigatory stage The Tribunal is not obliged to entertain submissions from any party or potential witness as to whether it will initiate an investigation decide that certain matters warrant a public hearing of evidence or discontinue or otherwise terminate an investigation as such matters lie within its sole discretion at that stage On the issue of vires it was argued that the current enquiries fall outside the Terms of Reference The terms relating to an enquiry into the beneficial ownership of any land was confined to those in North Dublin as included in the original Terms of Reference and the extant Term of Reference do not mandate or require such an enquiry into any other lands Further even on the Tribunal s own argument such an enquiry could not be necessary unless and until the Tribunal has concluded that corruption had occurred in relation to them which had not been determined and it was an irrational decision The Tribunal on the other hand argued that it was fully entitled to embark on the enquiries and they fell within the proper scope of paragraph A 5 of the original Terms of Reference In any event the matter had been put beyond question by the amended Terms of Reference and the appellant could not therefore succeed on this ground Finally as to the claim by the Tribunal that the appellant had delayed in bringing proceedings and was outside the time for doing so under the Rules of the Superior Courts the appellant argued that time ran from the months of November or December 2004 when the amended Terms of Reference became known whereas the Tribunal contended for a time running from November December 2003 when it notified the appellant of its intention to proceed to public hearings on the Carrickmines II Module The High Court Judgment Having heard the application over a number of days the learned High Court judge stated that as to the general onus which rests on an applicant for judicial review of a decision of a tribunal of this nature a party has a great mountain to climb It is by no means unassailable but it seems that one would need to stare irrationality in the face before it could be surmounted This finding was made in purported reliance on the case of Bailey Others v Flood Unreported High Court 6th March 2000 in which Morris P cited Finlay CJ in The State O Keeffe v An Bord Pleanala 1993 1 I R 33 On the issue of fair procedures and the right to be heard having cited certain jurisprudence he found as follows In Haughey v Moriarty supra in relation to a proposed discovery order in respect of a persons bank account Hamilton C J said at p 75 of his judgment Fair procedures require that before making such orders particularly orders of the nature of the orders made in this case the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order and should have been afforded the opportunity prior to the making of such order of making representations with regard thereto That in my view seems to indicate the limits on any person making submissions to a Tribunal while it is engaged in its private investigative phase as to how the Tribunal should conduct its inquiries in such phase or how and when it should exercise its decision to move to a public hearing Fundamentally it seems to me that this is what the applicant is seeking to do The applicant is endeavouring to address the Tribunal on whether or not it should move from its private investigations into public hearings This he does notwithstanding the fact that he has already engaged in phase 1 of the Carrickmines II Module But even if we were dealing with this matter at a time before the commencement of Phase 1 of Carrickmines II it seems to me the position in law would be the same The applicant is seeking to address the Tribunal as to how it should exercise its discretion in the preliminary investigative stage On the question of vires he found first that the test to be applied was one of irrationality secondly that the terms of Clause 5A of the Terms of Reference empowered the Tribunal to inquire into certain acts and that this was clear from Redmond v Flood 1999 3 I R 79 which confirmed the Tribunal s wide latitude in the interpretation of its terms of reference thirdly that in light of the latter finding the respondent was not acting ultra vires and finally the amended Terms of Reference expressly require the Tribunal to proceed as it sees fit to conclude its enquiries inter alia into the Carrickmines II Module However he found that even without such amendment the decision by the Tribunal was within its powers and Phases 2 to 8 were legitimate subjects of inquiry within its then existing Terms of Reference Finally as to delay the learned High Court judge found the relevant date was either November 2003 or February 2004 or possibly at the latest July 2004 when the views of the Tribunal on the substantive issues were clear The application for judicial review was therefore outside the time prescribed by the Rules The Appeal In light of the foregoing the Court now deals with the above three issues The Natural Justice Issue By far the most important ground raised by the appellant in both the High Court proceedings and on this appeal as accepted also by counsel for the Tribunal is the allegation that there was a breach of natural and constitutional justice on the part of the Tribunal in relation to the exercise of the discretion undoubtedly vesting in it pursuant to its amended Terms of Reference In essence the appellant contended before the High Court and now repeats in this Court that it is a breach of natural and constitutional justice to refuse outright to hear any submissions of counsel or otherwise on behalf of an affected party as to whether the Tribunal should exercise its discretion or not to proceed with Phases 2 to 8 of the Carrickmines II Module Senior counsel for the appellant Mr Gardiner relies in that regard on several cases including In Re Haughey 1971 I R 217 Haughey v Moriarty 1999 3 I R 1 O Callaghan v McMahon 2005 IESC 9 Lawlor v Flood 1999 3 I R 107 and others It is submitted that on two occasions the Tribunal refused wrongly and in breach of the appellant s constitutional right to fair procedures to hear any submissions whatsoever as to why it should not proceed as it intended with public hearings in respect of Phases 2 to 8 of the Module in question Further the Tribunal had wrongly done so on the apparent basis first that the discretion was a matter solely for the Tribunal because it alone as opposed to the appellant or any other party had access to the information and documentation in question and secondly that if it permitted counsel on behalf of the appellant to make submissions it would be necessary to allow others perhaps even a very large number of people to do so Counsel for the appellant submits that neither is a good reason in law and that neither provides a justification for refusing to entertain any submissions whatsoever Counsel further contends that the Tribunal accepted very belatedly it is said and only shortly prior to the High Court proceedings and contrary to its stance up to that time that the amended Terms of Reference did indeed confer on it the discretion which the appellant contended for As a consequence the Tribunal also had a discretion which could be exercised so as to terminate its inquiries or not proceed further with them even after the end of the private segment of its work The appellant was refused an opportunity to make submissions directed precisely towards the exercise of that discretion The appellant submits that at the time of the refusal in November and December 2004 the Tribunal apparently considered no useful purpose could or would be served by hearing any submission because regardless of what submissions might be made the Tribunal was contrariwise required to proceed to hear and conclude the entirety of all of Phases 2 to 8 of the Carrickmines II Module That view of the nature of its discretion was subsequently accepted by the Tribunal it is said as being wrong Indeed the appellant contends that had his counsel been permitted to make submissions his position concerning the discretion vesting in the Tribunal being correct would have been disclosed and the Tribunal could have reconsidered its then contrary and erroneous stance The appellant argues that the decision to proceed with the public hearings in relation to the relevant phase of the Carrickmines II Module had or was likely to have as its consequence inter alia serious adverse implications for the appellant including those as to time cost and utility upon which the appellant wished to make submissions That being so it is submitted in this appeal that the learned trial judge was incorrect in finding that there had not been a breach of fair procedures and that no unfairness had resulted from the refusal of the Tribunal to hear submissions the learned trial judge finding in that regard that the Tribunal was correct in constraining counsel s address to it in the manner in which it did on the following rationale The Tribunal has its own way of doing things and is entitled to order its own procedures subject of course to the legal and constitutional rights of persons before it in public phase It entertains both oral and written submissions as it had done in the instant case The Tribunal had indicated that area of debate to which it did not intend to go and it was within its rights so to do Certainly no discrete ground of unfairness was visited upon the applicant by the refusal on the part of the Tribunal to revisit legal argument which it rightly in my view considered to be over and done with It is submitted by counsel for the appellant that this part of the High Court judgment fails to set out any legal basis as to why the Tribunal was entitled to refuse to afford the appellant his legal right to fair procedures by permitting his counsel to make submissions in relation to the very matter which would have a serious adverse impact on him On behalf of the Tribunal on this ground senior counsel Mr Michael Collins argues that the learned trial judge was correct in law and that there was in fact and in law no entitlement on the part of the appellant to be heard The Tribunal did not infringe any natural or constitutional justice rights The following had been stated in its written submissions to the High Court relied on also in this appeal on this aspect of the matter the Tribunal did not infringe any natural or constitutional justice right of the applicant because the principles of natural or constitutional justice as applied to a Tribunal of Inquiry set up under the Tribunals of Inquiry Evidence Acts 1921 2004 do not require that a person who will be called as a witness if the Tribunal should decide not to terminate its preliminary investigation and to proceed to a public hearing of evidence has any entitlement to make submissions to the Tribunal concerning the exercise of its sole discretion in the investigatory stage as to whether the Tribunal will terminate that investigation or proceed to a public hearing of evidence Unless orders are proposed to be made against a person during the investigatory stage e g a discovery order the Tribunal is not obliged to entertain submissions from any party as to whether the Tribunal will initiate an investigation decide that certain matters warrant proceeding to a public hearing of evidence or discontinue or otherwise terminate an investigation as such matters lie within the sole discretion of the Tribunal at the investigatory stage which it may exercise without being obliged to hear submissions from a potential witness emphasis added Counsel for the Tribunal also contends that the appellant continues to misunderstand its stance on precisely what discretion it has including the discretion once counsel for the Tribunal opened the hearing at the end of January 2004 and argues it had not changed its position either shortly before the hearing in the High Court or at any stage and has not since changed its stance which corresponds and has always corresponded with the above submissions Conclusion In relation to tribunals such as the one involved in these proceedings it is critical to point out that they have and must be permitted to have a considerable margin of appreciation in relation to the manner in which they organise their procedures and affairs That margin of appreciation must be and always has been recognised and respected by courts This principle is well established in the case law and has been repeated by this Court and by the High Court in several judgments which are not necessary to cite at this stage The present appeal however does not in reality attack the Tribunal s proper even wide margin of appreciation nor the general right of this or any other tribunal to organise its own affairs and procedures as it wishes Rather the appeal and the proceedings are based entirely on the specific exercise of a particular discretion in respect of which the Tribunal itself may have regard to particular criteria according to the actual wording of the extant amended Terms of Reference These are ones which the Oireachtas when adopting the Resolution to amend the Terms of Reference as recommended by the Tribunal and as incorporated into the Ministerial Order referred to above obviously considered would or might be relevant to the exercise by the Tribunal of its discretion It cannot be gainsaid that in this appeal the relevant criteria referred to in the amended Terms of Reference are all relevant factors which in particular cases may or should be taken into account by the Tribunal They include as is clear from their terms matters in respect of which a person such as the appellant would or could have particular information even perhaps information not already known to the Tribunal 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 Equally there are undoubtedly occasions also when a body such as a Tribunal of Inquiry must be decisive The Tribunal in this case has from time to time been assailed by unjustified assertions that certain action is required by the rules of natural justice In hindsight at least however it appears regrettable that a rather robust perhaps even dogmatic position was adopted by the Tribunal in the present matter and that much subsequent delay expense and litigation might have been avoided if the Tribunal had agreed to consider submissions even in limited form While fully recognising and appreciating the Tribunal s desire to avoid a further round of submissions and argument on a matter ultimately for the Tribunal in its discretion to decide nevertheless by refusing to entertain any submissions whatsoever in any form on behalf of the appellant the Tribunal set up a clear issue of law which required to be determined It seems patently clear that neither of the reasons advanced by the Tribunal on the 27th November 2004 at the oral hearing can in law justify the stance actually taken by the Tribunal if as is clear the decision to be taken was one which affected or could adversely affect the appellant s interests and could therefore be said to attract an obligation to apply the principles of natural justice As to the first basis invoked by the Tribunal while undoubtedly it may have had in its possession information and documentation to which the appellant did not have access and of which he might have no knowledge it does not follow from that fact that the appellant or counsel on his behalf should not be permitted to make submissions based on information and documentation within the knowledge of the appellant even peculiar to him in connection with the exercise of the discretion by the Tribunal together with the reasons for it As to the second basis this too cannot in law constitute a good reason for refusing to permit a person who does wish to be heard and who is otherwise entitled to be heard from making submissions in connection with the exercise of the discretion The mere fact that a large number of persons might wish to become involved cannot of itself alter what is required by the rules of natural justice that is merely a reflection of the scope of the Tribunal and the number of parties affected by it In fairness to the Tribunal however this second reason was not the principal basis upon which the Chairman rested his ruling Moreover the fact that a decision is one which is going to be taken in the exercise of a discretion even a very wide discretion is also not a ground in itself for departing from the basic principle of audi alteram partem Neither the breadth of the discretion nor the fact that it is described as the sole discretion of the Tribunal and thus may only be reviewed in very limited circumstances could in law lead to the automatic conclusion that if that decision is one adversely affecting the interests of a party it does not attract the rules of natural justice Indeed it might be said that where the discretion afforded is very broad as here and the limits on possible review may be correspondingly very narrow this makes it all the more important that an affected party should have the right to make submissions before a decision is made If anything the scale of the Tribunal and the fact that there is no appeal from its findings emphasises the importance of scrupulous adherence to the rules of natural justice On the face of it therefore and as a matter of first principle it seems clear that this issue involves a canon of administrative law of an almost rudimentary nature that if the decision may or will affect the interests of another sufficient to require adherence to the principles of natural justice then a party affected and certainly an affected party who expresses a desire to make submissions must be heard at least in some form See Dellway Investments Others v National Asset Management Agency Others Unreported The Supreme Court 12th April 2011 in which it was stated that person whose interests are capable of being affected directly by a decision of a public body exercising statutory powers is ordinarily entitled to have notice of the intention to consider the making of the decision and to have his representations considered by the decision maker It was not suggested at any time before this Court or to the High Court that the Tribunal was not making a decision which might adversely affect the appellant even significantly so nor is there any question of the decision being merely a fact finding exercise which might not otherwise attract overall the Rules of Administrative Law In this appeal counsel for the Tribunal however seeks to defend the decision on a basis not expressly invoked by it at all when making its ruling on the 27th November 2004 and nor was it the declared basis for the ruling although also raised as a defence in the High Court On that occasion when it made its ruling it stated inter alia The Tribunal is not prepared to hear any submissions as to how the tribunal should exercise its discretionary powers provided for in the new Terms of Reference emphasis added The point now made might have been detectable but with some very considerable effort in the reference to nothing having changed made by the Tribunal not in support of its decision but in the course of exchanges with counsel during argument earlier in 2004 at the opening address of counsel for the Tribunal referred to above It is contended now on behalf of the Tribunal however that what was involved here was its decision to move from private sessions to public hearings This stated basis is cited in the High Court as one of the issues between the parties before it It is the basis for the High Court judgment and remains the basis according to the written submissions filed on behalf of the Tribunal before this Court and all the foregoing in reliance on the allegation that the appellant cannot challenge the Tribunal s decision to move from preliminary investigation stage to public enquiry stage It is argued that not only is there no authority for the proposition that a tribunal should entertain a submission as to how it should make such a decision but further there was relatively recent authority from this Court to the contrary Redmond v Flood 1999 3 I R 79 It is contended that if the appellant were to succeed this Court would have to overrule that decision Although not either of the bases actually invoked for the decision made to understand counsel for the respondent s argument on this point and why in this Court s view it is in any event misconceived it 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

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  • 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 as it existed was essentially governed by the Restrictive Trade Practices Act 1953 as amended and subsequently replaced by the Restrictive Practices Act 1972 which was in turn repealed by the Competition Amendment Act 2006 The system thus established can be described as being one of abuse control within particular sectors or trades on a case by case basis That changed with the enactment of the Competition Act 1991 which adopted a prohibition style regime based on Articles 81 and 82 of the E C Treaty now Article 101 and Article 102 of TFEU which provisions were applied 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

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  • of witnesses to be called at the trial It was also stated that counsel for the plaintiff would apply for a trial date on 29th October 2008 At that point the solicitors for the defendants contacted the plaintiff s solicitors seeking a delay of approximately 6 weeks on such an application to enable the defendants to review and deal with the medical reports The plaintiff s solicitor agreed but heard nothing further and wrote again to the solicitor for the defendants on 9th December 2008 indicating that counsel would on 10th December 2008 make an application for a date for the hearing of the action On the same date 9th December 2008 the plaintiff s solicitor received a letter from the defendant s solicitor indicating that they would also be making application by way of notice of motion seeking to set aside the order for judgment dated 12th March 2007 This was returnable for 12th January 2009 The plaintiff s solicitor pointed out that the defendants solicitors had first intimated in a letter dated 2nd May 20007 that it was the defendants intention to bring a notice of motion at the earliest opportunity in respect of the said order of the High Court but that this was not done until the aforesaid date 22nd December 2008 In parallel with this the solicitor for the defendants wrote another letter on 10th December 2008 stating that the plaintiff was to be examined on their behalf by a psychiatrist on the 11th February 2009 In the meantime counsel for the plaintiff attended before the High Court on 10th December 2008 seeking a date for hearing in late February in the light of the proposed medical appointment This hearing was not granted at the time as the defendants indicated their intention to apply to have the order of 12th March 2007 set aside It is also relevant to note that as of the date of the hearing of this appeal before this Court the hearing of the plaintiff s claim as an assessment of damages had been set down for hearing The High Court The motion to set aside the judgment obtained by the plaintiff in this case was heard and decided in the High Court in an ex tempore ruling on 9th February 2009 Decision Order 27 Rule 14 2 of the Rules of the Superior Courts cited in full above provides that 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 might think fit Until the Rule was amended in 2004 that was the basis on which a judgment might be set aside in the exercise of the Court s discretion and indeed the terms of the Rule had remained essentially the same as that in order 27 Rule 17 of the Rules of the Supreme Court Ireland 1905 See Wylie s Judicature Acts 1906 The Rule was amended by Statutory Instrument No 63 of 2004 by the insertion of the phrase after the foregoing text if the Court is satisfied that at the time of the default special circumstances existed which explain and justify the failure The amendment to the longstanding Order 27 Rule 4 is specific and narrowly focused For an applicant to succeed under the terms of the Rule he must first of all demonstrate that there were special circumstances explaining and justifying the failure at the time when the judgment was obtained Emphasis added Strikingly although the amendment introduced a new and stricter criterion which an applicant must satisfy before he or she can rely on the Court exercising its discretion in his or her favour it did not introduce any time limit within which an application to set aside a judgment in default must be made Any delay in bringing an application to set aside remains as it always has been a matter to be taken into account by the Court when exercising its discretion under the Rule Contrary to what counsel for the plaintiff submitted I do not think that subsequent delay of an inordinate nature in bringing an application to set aside a judgment can affect the question as to whether there were special circumstances at the time the judgment in default was obtained In my view the appellant has clearly established that there were special circumstances at the time when the plaintiff obtained judgment within the meaning of the Rule The defendants solicitor were not only completely unaware that the motion for judgment instead of being struck out had been adjourned for three weeks but afterwards he had been mistakenly and I do not attribute any male fides at all in this regard told by the plaintiff s solicitor that it had been struck out As a result the defendants solicitor was totally unaware that an unless order had been made by Herbert J until eventually notified to that effect by the plaintiff s solicitor All of this clearly constitutes special circumstances within the meaning of the Rule That of course did not of itself entitle the appellant to an order setting aside the judgment in default The next question is whether in all the other circumstances of the case the Court should exercise its discretion to set aside the judgment and permit the defendant to file his defence Discretion of the Court The plaintiff s claim has been based on allegations of serious misconduct on the part of members of An Garda Síochana who arrested him on the occasion referred to in the Statement of Claim and for whose actions the State the third named defendant may be held vicariously liable I would observe in passing that neither the first named or second named defendants can bear such vicarious liability even though they are routinely named as defendants in cases of this nature See Byrne v Ireland 1972 IR 241 The defendants made it clear that they wished to defend

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