(delivered the judgment of the court)
This is the appeal of the appellants, the members of the tribunal mentioned in the title (“the tribunal”), against the judgment and order of the High Court (O’Neill J.) delivered on the 7th July, 2004, and perfected on the 27th July, 2004. By that order, the Court granted a declaration:
.... That the refusal by the respondents to permit the applicant through his legal representatives access to the documents which are relevant to the present or current module of the inquiry (and not to include notes made by counsel solely for their purpose but to include information recorded or transcribed from the notice party by counsel) recording prior oral and written statements by Tom Gilmartin to the Tribunal of Inquiry into certain planning matters and payments, for the purpose of cross-examining the said Tom Gilmartin, amounts to a failure by the respondents to observe and protect the applicant’s rights to fair procedure and to natural and constitutional justice.
The Court further ordered, in lieu of making an order of certiorari, that the tribunal “forthwith send before the Court here for the purpose of being quashed the aforesaid decision made by them on the 24th March, 2004 and all records and entries relating thereto and that same be quashed without further order.”
The tribunal was originally established in October, 1997. Its original remit was to investigate the planning history of some lands in North County Dublin. However, its terms of reference were widened in June, 1998, to enable it to investigate all improper payments made to politicians in connection with the planning process. The tribunal is currently investigating certain matters which took place in the period between 1987 and 1990. According to the statement of the chairman, Judge Mahon, at the opening of this module on the 3rd March, 2004, the module is entitled “Arlington/Quarryvale and related matters.” The chairman stated that the module “is essentially concerned with allegations of corruption relating to lands at Bachelors Walk in Dublin City and Quarryvale in West County Dublin.”
The applicant, Mr. O’Callaghan, is a property developer and a director of a number of companies in that line of business. He has been so engaged for upwards of 35 years. He has property development interests in Cork, Dublin and the UK, some of which are partnerships with other persons or companies. He is an Irish citizen and he and his family reside in Cork. His relevance to the present module arises from the fact that a company which he controls acquired an interest in a site at Quarryvale, where the Liffey Valley Shopping Centre now is. He did not have any interest in the Bachelors Walk site.
In October, 1987, through another company, he acquired lands at Neilstown/Balgaddy in West Dublin and subsequently entered into an agreement dated the 31st January, 1989, whereby Mr. Tom Gilmartin agreed to purchase the site for a sum of £3.5 million payable by instalments. Mr. O’Callaghan says that because of the default of Mr. Gilmartin in completing this agreement, he, Mr. O’Callaghan, eventually acquired an interest in Barkhill Limited, which was a company used by Mr. Gilmartin to acquire lands at Quarryvale. Thereafter Mr. O’Callaghan and Mr. Gilmartin proceeded to develop Quarryvale until, in 1996, Mr. Gilmartin was bought out of the project for £7.76 million.
A lucid summary of these transactions is to be found in the judgment of the learned High Court judge under the heading “Background”. I gratefully adopt this summary. However, a short account of the procedural background to the tribunal’s decision which Mr. O’Callaghan challenges is necessary to place in context the central event giving rise to these proceedings.
Mr. Gilmartin, for his part, has chronicled his involvement in the above-mentioned sites and in a separate site at Bachelors Walk in Dublin City centre. Arising out of these matters he has made allegations which are, inter alia, now the subject matter of the investigation being carried out by the tribunal. For the sake of efficiency, the chairman said, this investigation is taking place in two modules, the first concerning the period between 1987 and 1990 and the second the period thereafter.
Both Mr. O’Callaghan and Mr. Gilmartin have had various interactions with the tribunal before it went into the present public phase. Mr. O’Callaghan says, without contradiction, that he has made an extensive statement at the tribunal’s request and provided four further statements on specific matters in relation to his dealings with Tom Gilmartin and other persons. This has involved him in substantial costs and the expenditure of substantial amounts of his own personal time. He has also made discovery of some 35,000 pages of documents.
Mr. Gilmartin, though a notice party to these proceedings, has not taken any part in them and his counsel sought and were permitted to withdraw both in the High Court and in this Court. No affidavit has been sworn by him or on his behalf. However, it is clear that he too had significant interactions with the tribunal before it went into public hearing. The precise circumstances of this interaction are far from clear, because Mr. Gilmartin has said nothing relevant and the tribunal has observed a studied and at times Delphic economy of disclosure on the topic. It appears however that it led to the generation of three sorts of documentary material viz (though not necessarily in this order):
Counsel’s notes of Mr. Gilmartin’s response to questions put to him by counsel for the tribunal at a private meeting or meetings,
Material furnished by his then solicitor apparently representing the result of a question and answer session between him and the solicitor,
A draft affidavit apparently prepared on the basis of either or both of the above. On the hearing of this appeal counsel for the tribunal told the Court that he could not say why the factual information provided by Mr. Gilmartin had been reduced to affidavit form.
All this material has been communicated to the members of the tribunal. In addition there appears to be statements from third parties, including Gardaí and officials, recording earlier allegations by Mr. Gilmartin.
It may also be noted that Mr. Gilmartin, at the time he was approached by the tribunal, was resident in the United Kingdom and was thus not compellable by the tribunal. He was advised not to cooperate with the tribunal unless and until he received a letter of immunity from the DPP, though he said that he himself did not believe that he required immunity as he had done nothing wrong. He received such a letter of immunity in terms which were not communicated to the Court.
Mr. Gilmartin also furnished a written statement to the tribunal dated the 25th May, 2001, though a slightly earlier date occurs in the body of the statement. On the 12th March, 2004, being the day before the public hearings commenced, Mr. Gilmartin’s solicitors wrote to the tribunal saying that he believed that “there may be a number of inaccuracies in the dates mentioned in his statement” and going on to make certain corrections, none of which affect Mr. O’Callaghan.
This statement, together with a large volume of other documents relevant to the module, had been circulated to persons affected by his statement in advance of the public hearing. It was circulated to Mr. O’Callaghan even though he had not at that time applied for representation. The statement extends to some 37 pages. However, in the version furnished to Mr. O’Callaghan, and to the Court, more than 20 pages have been blanked out in two continuous tranches of 5 ½ pages and 15 pages. Mr. O’Callaghan received this under cover of a letter dated the 26th January, 2004. He received seven folders with this letter, of which the first three “contain the statements furnished through the tribunal at the request of the members of the tribunal by the witnesses whose evidence it is intended will be heard in the course of this module.”
The great bulk of the material in this statement is not of direct relevance to Mr. O’Callaghan. Mr. Gilmartin describes his involvement with the Bachelors Walk and Liffey Valley sites and says, in essence, that on a number of specified occasions he was asked for money by or on behalf of politicians and a highly placed official. The sums involved varied from enormous to relatively small. He says he paid over no money whatever except for £35,000 in monthly payments of £3,500 to a named politician. Even these, he says, he paid only on the basis that he was being reimbursed by a company with which he and his associates were dealing. He came to believe, however, that his refusal to make the other payments led to his projects being frustrated by those who had unsuccessfully sought them. He complained of this at the time to a number of persons. These included two reputable and highly placed local government officials to whom he spoke on the 23rd and 24th February, 1989. One of these, the then City Manager, made an almost contemporaneous note of what was said. This led to a garda inquiry led by Assistant Commissioner Sreenan to whom he spoke by telephone on three occasions in March, 1989. The Assistant Commissioner also made notes of these conversations. Subsequently, however, Mr. Gilmartin declined to provide him with a written statement. In opening this module counsel for the tribunal stated that, according to the garda report, Mr. O’Callaghan was asked by the Gardaí to speak to Mr. Gilmartin in order to persuade him to provide a statement, but Mr. O’Callaghan was unsuccessful in this. It also appears that in a statement to the tribunal one of the local government officials said that he was told by Mr. Gilmartin that Mr. O’Callaghan would verify the complaints he was making to the officials. The official then contacted Mr. O’Callaghan and says that he was told by him that Dublin was run by politicians and was corrupt. Mr. O’Callaghan says that he told the official that he could not confirm or contradict what Mr. Gilmartin said as he had no familiarity with how such matters operated in Dublin. However, he said that his Irish development experience was in Cork and Limerick where the system operated in a different way to that perceived by Mr. Gilmartin as applying in Dublin and where (i.e. in Cork and Limerick) the manager’s word was final.
The central event giving rise to these proceedings is that in the course of his public oral evidence to the tribunal commencing on the 4th March, 2004, Mr. Gilmartin made very grave and sometimes very dramatic allegations against Mr. O’Callaghan which were wholly absent from his, Mr. Gilmartin’s, statement as circulated to Mr. O’Callaghan. This, indeed, does not appear to be in dispute although the tribunal’s attitude is a somewhat nuanced one, and will be discussed below. Arising out of the making of these allegations the representatives of Mr. O’Callaghan requested sight of earlier versions of Mr. Gilmartin’s statements in whatever form in the possession of the tribunal. This was refused in a formal judgment delivered on the 24th March, 2004. It is this decision which is impugned in the present proceedings.
RELEVANT CONTENTS OF THE STATEMENT
The statement of Mr. Gilmartin, in the redacted form in which it is available to Mr. O’Callaghan and to the Court, describes the course of dealing between Mr. Gilmartin and Mr. O’Callaghan in relation to the West Dublin lands. It also attributes certain statements about Mr. O’Callaghan to third parties. One of these was to the effect that Mr. Gilmartin would have to deal with Mr. O’Callaghan, as he owned the Neilstown site which had the appropriate zoning for development. The only specific allegation linking Mr. O’Callaghan in any way to improper payments was to the effect that Mr. O’Callaghan was present with others in the public bar of a Dublin hotel when, in another part of the bar and outside the presence of Mr. O’Callaghan, a named County Councillor made a financial demand of Mr. Gilmartin. The parties differ, however, as to their subsequent conversation about this. This incident is said to have occurred in late December, 1988.
ALLEGATIONS MADE IN ORAL EVIDENCE
Mr. Gilmartin gave public evidence to the tribunal over a number of days commencing the 4th March, 2004. This evidence featured a number of strongly worded and personalised attacks on Mr. O’Callaghan, whom he described as a crook and a blackmailer and as someone who had held him up to ransom. His more specific allegations, of which he had apparently given no notice, may be summarised as follows:
Mr. Gilmartin was shown by counsel for the tribunal the agreement into which he had entered with Mr. O’Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr. O’Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was shown was not the agreement which he signed and that it had been falsified by Mr. O’Callaghan and his (Mr. O’Callaghan’s) solicitor so as to alter its terms.
That at their first meeting of the 7th December, 1988, Mr. O’Callaghan told him that he had just come from a dinner for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he owned.
That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in which he had left the payee blank was for the purposes of stopping the activities of Mr. O’Callaghan. He had not mentioned Mr. O’Callaghan in this connection in the redacted form of his statement, but had named others.
That Mr. O’Callaghan had given false information to the British Revenue which had resulted in Mr. Gilmartin being declared bankrupt.
That Mr. O’Callaghan had bribed a named councillor.
That the purchase by Mr. O’Callaghan of Mr. Gilmartin’s interests in a site at Balgaddy was the result of Mr. O’Callaghan holding him to ransom.
That Mr. O’Callaghan, with the connivance of a bank, stole Mr. Gilmartin’s money and used it to bribe councillors to block rezoning for the Quarryvale scheme.
That Mr. O’Callaghan had encouraged Mr. Gilmartin not to cooperate with the garda investigation into his allegations.
It is clear that these allegations are very grave. It is equally clear from a perusal of the circulated statement that they were entirely novel: no hint of them appears there. Nor could anyone glean that these allegations were about to be made from the opening statement of counsel for the tribunal. Indeed, from a perusal of the transcript of Mr. Gilmartin’s evidence it appears that, in certain cases at least, counsel for the tribunal was hearing the allegation for the first time. In relation to the first of the matters listed above, tribunal counsel remarked, apparently in bewilderment, that the agreement now said not to be the one Mr. Gilmartin had signed actually came to the tribunal from Mr. Gilmartin himself. It must also be recorded that certain of the allegations are very dramatic in character and attracted, as was to be expected, wide and prominent publicity once made.
Nor were these the only dramatic aspects of Mr. Gilmartin’s evidence. Amongst the most significant of his other allegations was that he had met various high office holders on a visit to Dáil Éireann in early 1989. Afterwards, he said, he was approached in Leinster House by an unidentified man who made a demand of him for a payment of £5 million. Counsel for the tribunal questioned him as to who he had told about this. He listed a number of persons. However, at the beginning of a subsequent day’s hearing he stated that he had made an omission, “a notable omission, from a question asked by Mr. Gallagher as to who I told about the visit to the Dáil.” He proceeded to say that “I did inform Mary Harney at a – it was a house warming party in Dalkey and I told her about what was going on. I had just forgotten. That’s all thank you.”
This allegation was manifestly one of great significance. The chairman requested a supplementary statement about it. On the 24th March, 2004, counsel for Mr. Gilmartin read a statement on behalf of his client which said inter alia:
In my evidence to the tribunal, I told the tribunal that I had told Ms. Harney about my visit to the Dáil. However, having reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and the ministers in Dáil Éireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that evidence to the tribunal, I may have been confused with another housewarming party which also took place in Dalkey a year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms. Harney was not present at this second housewarming.
Therefore, Mary Harney was not one of the people that I told about a meeting with the then Taoiseach and the ministers in the Dáil and about the demand made for £5 million.
It is noteworthy that Mr. Gilmartin’s change of mind on this important matter was caused by the discovery by Mr. Gilmartin or his advisers of a fact in direct contradiction to the evidence he gave. This was that the party at which he had said he had met Ms. Harney actually took place prior to the date of the meeting which he alleged occurred in Dáil Éireann. It is also noteworthy that Mr. Gilmartin completed his statement and his initial evidence without mentioning Ms. Harney as amongst the persons he had told of this truly dramatic alleged demand but he had subsequently become so convinced that he had in fact told her that he interrupted the proceedings on another day to make that point.
All these things must be seen in the context of the procedures adopted by the tribunal. These will be discussed in some detail below but for present purposes it is significant to note the statement that another counsel for the tribunal, Ms. Dillon S.C., made in the course of an objection she took to a particular line of cross-examination of Mr. Gilmartin. She said that, by reason of the procedures adopted by the tribunal:
There are no surprises here.
That, unfortunately, cannot be said of the evidence of Mr. Gilmartin and it is that fact which has given rise to the present proceedings.
THE TRIBUNAL'S STANCE
In his statement of opposition in the present proceedings the notice party, Mr. Gilmartin, states without qualification:
It is denied that the notice party made serious allegations for the first time against the applicant during the course of his evidence to the tribunal which commenced in public on the 3rd March, 2004.
On the other hand, in the affidavit grounding the tribunal’s notice of opposition Ms. Susan Gilvarry, Solicitor, says at paragraph 36:
I say that in the course of his evidence before the tribunal Mr. Gilmartin did raise certain matters which had previously been advised to the tribunal’s legal team in the course of the preliminary investigation but which relate to matters unconnected with the module the subject of the current inquiry. The tribunal was unaware that Mr. Gilmartin intended to provide testimony in public at this time in connection with these matters. This evidence will not be considered by the tribunal in its deliberations in connection with the present module. In addition, Mr. Gilmartin in evidence did raise matters in connection with the current module which had not been directly referred to previously by him. I say that in respect of these matters the tribunal were unaware prior to the commencement of Mr. Gilmartin’s testimony that he would give such evidence in public at this time. These matters having been introduced by Mr. Gilmartin, the tribunal permitted in these circumstances cross-examination of Mr. Gilmartin in connection with these matters and further permitted the introduction into evidence of documentation held by third parties including the applicant herein for the purpose of cross-examining Mr. Gilmartin.
This averment, considered as a statement of fact, appears to me to be somewhat nuanced. Did the tribunal, or did they not, have previous notice of the allegations relevant to the present module which were not in the statement? If they did, why were those allegations not in the circulated statement, or otherwise notified? If they did not, why employ the ambiguous language emphasised in the quotation from the affidavit, above? But it is at least clear that the tribunal does not dispute that certain “matters in connection with the current module” i.e. allegations made by Mr. Gilmartin against Mr. O’Callaghan, were not in any way communicated to the latter before the former gave them in oral evidence.
On this appeal it was not denied, and was indeed undeniable, that the emphasised phrases in paragraph 36 of the tribunal affidavit are ambiguous. This ambiguity, presumably, was employed in order to maintain consistency with the plea of confidentiality in the material generated outside the public hearings which is the lynchpin of the tribunal’s case.
OTHER RELEVANT DEVELOPMENTS AT THE ORAL HEARING AND THEIR SIGNIFICANCE
In cross-examination of Mr. Gilmartin by counsel for another party, which took place before the cross-examination on behalf of Mr. O’Callaghan, a number of facts were established. Firstly, Mr. Gilmartin had been in discussion with the tribunal from time to time going back as far as 1998, some six years before he came to give evidence. He thought that he had given two statements, at least one of which was under oath. He was taken through two apparent inconsistencies between his statement and the evidence about the agreement with Mr. O’Callaghan, and it was put to him that he had made in evidence an extremely serious allegation about this. He replied “there’s better coming”. After further discussion about alleged inconsistencies between his statement and his evidence, he was asked about the written material produced through Mr. Noel Smyth, Solicitor. He was asked whether there was any objection to counsel for the impugned parties seeing that statement. The chairman immediately interjected:
It’s not a matter for Mr. Gilmartin to consent or not to consent to. It’s a matter for the tribunal to decide what documentation can be referred to.
Counsel for the tribunal demanded that cross-examining counsel state whether he had any instructions about the Smyth document or whether his solicitor had had sight of it. It transpired that cross-examining counsel was relying on a newspaper report, which he quoted. Counsel then proceeded to ask Mr. Gilmartin whether he had given an account to Mr. Smyth of the Leinster House meeting to which he replied “I possibly did. I don’t know”. The chairman then intervened:
The position in relation to other information or documentation which the tribunal might have in relation to Mr. Gilmartin is part and parcel of the private preliminary inquiry conducted by the tribunal, and that remains confidential. The only statement of information from Mr. Gilmartin that the tribunal has decided to circulate is that contained in the brief.
Counsel contended for the relevance of previous statements on the question of accuracy and veracity but the chairman said:
No, before any module goes into public hearing, as has happened in this case, there are often extensive private interviews and information taken from individuals, and that remains confidential, and any information given by Mr. Gilmartin either through another solicitor or directly with individuals or individual members of the legal team of the tribunal remains confidential .... it’s part and parcel of the investigative process of the tribunal that this type of information is provided on a confidential basis and remains on a confidential basis.
Counsel protested that he felt hampered in not being able to ask about differences between one statement and another. Counsel was, however, permitted to ask if the witness had given any different story on any other occasion to anyone represented at the tribunal “but to ask him about specific detail is unfair to him because he doesn’t have access to the information.” Counsel then said that “in relation to testing an answer of that nature surely it’s a fundamental situation that if there’s a statement which exists, that is made on a previous occasion, that I should have sight of that.” The chairman ruled:
No, because the tribunal has decided in this case as it has in other cases that certain information remains confidential and the information given here by Mr. Smyth in Mr. Gilmartin’s case is deemed to fall into that category, so any application to have access to that is rejected and has been rejected in the past.
A little later the chairman said:
.... The tribunal wouldn’t conceal from interested parties information which would suggest that there is a glaring inconsistency between an account given on a previous occasion privately to the tribunal and one given publicly because that would clearly be wrong.
After further argument by counsel for the tribunal the chairman ruled:
I think the only question which we would permit in the circumstances, insofar as information given confidentially to the tribunal is concerned, by Mr. Gilmartin, is something along these lines, ‘has he given evidence or information to the tribunal on a previous occasion which is significantly inconsistent with the information contained in his circulated narrative statement or in his evidence’. If you wish to ask a question on those terms we don’t object to it, but we can’t permit any question being asked of Mr. Gilmartin as to any detail contained in information furnished privately to the tribunal.
After this lengthy exchange, occupying some six pages of transcript, Mr. Gilmartin was eventually asked:
anything contained in the statement that you gave to the tribunal at an earlier time which is inconsistent with what you have written in your statement now?
There is a good possibility there is. It’s quite possible there is because at the time I wasn’t co-operating with the tribunal, and neither d
Is thereid I put any research into what – other than – all I know is what was done to me and how it was done to me.
On a later date, in cross-examination by counsel for Mr. O’Callaghan a dispute arose about Mr. Gilmartin’s allegation about alterations in the contract. It was put to him that this was “something you have simply pulled out of the hat before the tribunal, and that you have wrongly alleged that a solicitor and Mr. O’Callaghan were involved in altering a document that you signed ....”. He said he stood by that allegation. Asked why it was not in his statement he said:
There is loads probably loads of omissions in my statement that would be ....
It is important to note that in relation to, at least, the first and second of the un-prefigured allegations, Mr. Gilmartin insisted that he had told the tribunal about them prior to the hearing, although this was not in his statement. It was put to him in relation to the allegation of alteration in the contract that his public oral evidence was the first occasion he had told the tribunal about this allegation and he replied:
No, I told the tribunal officials the full, complete statement of how Mr. O’Callaghan had held me to ransom and how he managed to do it with the help of his, well, honourable solicitor.
In relation to the Lee tunnel allegation it was put to him that this was the product of “juggling the facts in your own mind”. He replied:
No. No. I told the tribunal five years ago I think, I repeated that story to the tribunal back in 88/89.
In context, this should obviously be 98/99. It was put to him that the tunnel allegation was not in his statement, to which he said that “it was irrelevant.”
The foregoing references to individual questions and answers are necessary because, taken together, they constitute the whole of the detailed information available to this Court about Mr. Gilmartin’s dealings with the tribunal prior to the oral hearing. From them one knows that there were such dealings: that they led to the production of written materials; and that there were, or might well be, many inconsistencies between that written material and the accounts given in the statements. He also asserted that he had told the tribunal about the first and second allegations mentioned above, although this does not appear from the written statement circulated.
THE REQUEST FOR DOCUMENTS AND ITS PURPOSE
On the 18th and 22nd of March, 2004, the Solicitor for Mr. O’Callaghan wrote to the tribunal in the following terms:
18th March, 2004:
During the course of evidence given by Mr. Gilmartin on Tuesday 15th March (and previously), it became apparent that Mr. Gilmartin has provided a statement to the Tribunal in addition to that which has been circulated to the parties. When asked by Counsel for An Taoiseach if that statement was in any way inconsistent with that which has been circulated to the parties, Mr. Gilmartin said that there is a good possibility that it is.
On that day, the Tribunal ruled that it would not conceal from interested parties information which would suggest that there is a glaring inconsistency between an account given on a previous occasion privately to the Tribunal and one given publicly because that would be clearly wrong.
Mr. Gilmartin has now given evidence as to the existence of inconsistencies as between one statement given to the Tribunal, and not circulated, and another which has been circulated. Without sight of the document, we do not know what those inconsistencies are or how they impact on the credibility of the witness or the allegations that he has made about our clients.
Clearly, the Tribunal’s ultimate goal in its deliberations is to arrive at, so far as it possibly can, the truth. Any document which, on the evidence of its author, is inconsistent with another of the same author can only assist the Tribunal in the pursuit of the truth and should, we respectfully submit, be made available to the parties who have been called to give evidence to the Tribunal so that the document may be considered and, if appropriate, put to a witness in order to test the evidence that he has given under oath. We submit that transparency and fairness demand that we be given access to such a document.
Please let us have a copy of the earlier statement submitted by Mr. Gilmartin and confirm that no other statements to the Tribunal relevant to this module, by Mr. Gilmartin, whether made directly or through his solicitors, exist. In circumstances where our clients cross examination of Mr. Gilmartin is to start at 10.30am tomorrow, we should be grateful to receive the document and confirmation by 14.00 today.
22nd March, 2004:
We refer to our letter of 18th inst. on the issue of Mr. Gilmartin’s previous statements. We understand that the Tribunal is considering our application and hopes to respond on Monday.
In the meantime, we would like to draw the attention of the Tribunal to the views of Hardiman J. expressed in Maguire v Ardagh  1 IR 385, 704-708, which we believe to be strongly supportive of our application. We would also like to draw the attention of the Tribunal to the decision of the Divisional Court in the same case at page 431 of that report through to 433.
Our concern is heightened by the fact that when Counsel for Mr. O’Callaghan, Mr. Deane and Barkhill Limited cross examined Mr. Gilmartin on his allegation that Mr. O’Callaghan allegedly stated that the line of the Lee tunnel had been altered to suite the Mahon site, Counsel for the Tribunal objected to this line of cross examination on the basis that it was not in a supplemental statement or document filed on behalf of Mr. O’Callaghan. However, it then transpired that Mr. Gilmartin was claiming that he had provided this information to the Tribunal in an earlier statement. This information was of course of critical importance to the credibility of the witness and If Mr. Gilmartin’s testimony is correct, it is a matter of some concern that it was not included in any statement of his circulated with the brief. As it is, the first Mr. O’Callaghan heard of the allegation was when Mr. Gilmartin’s evidence was reported to him.
We respectfully submit that the interests of fairness and transparency now require that all Mr. Gilmartin’s prior statements whether made directly or indirectly, orally or in writing, be discovered to the parties insofar as they are relevant to the current module. Needless to say, we will be making a similar application in due course in relation to any future module in which our clients may be involved and Mr. Gilmartin may be given to evidence.
On the 22nd March, 2004, the tribunal replied:
I refer to the above and to your letters of 18th March and 22nd March respectively.
I am directed by the members of the Tribunal to inform you with regard to the documentation sought in the aforementioned letters, and similar requests by other parties to the tribunal, the Tribunal Members will on Wednesday next the 24th of March, 2004, deal in public with the issue of documentation not previously circulated and now sought by parties before the Tribunal.
The members have directed me to inform you that your client will not be prejudiced in anyway pending the Tribunals ruling on Wednesday next, and should you require that the witness be recalled following the Tribunal’s ruling, same will be arranged.
On the 24th March, 2004, the tribunal gave the ruling impugned in the present proceedings as follows:
I will now read the ruling of the Tribunal. This is in response to requests made by a number of parties to whom representation has been granted that the Tribunal should release to them all information, statements or other documents or information provided to the Tribunal by Mr. Gilmartin and the same be circulated to the interested parties so as to enable Mr. Gilmartin to be cross-examined in relation thereto. In accordance with its established procedure, the Tribunal has in advance of Mr. Gilmartin’s evidence already circulated to such parties Mr. Gilmartin’s narrative statement of the facts upon which the Tribunal has determined that a public hearing is merited.
In addition to this statement, the Tribunal has further documentation which includes details of communications between Mr. Gimartin and his solicitors and members of the Tribunal’s legal team. In addition, the Tribunal has been provided with a document prepared following a question and answer interview between Mr. Noel Smyth, a solicitor then acting on behalf of Mr. Gilmartin, and Mr. Gilmartin. This document was provided to the Tribunal by Mr. Smyth at the request of Mr. Gilmartin in 1998.
The Tribunal legal team was neither present at this interview nor instrumental in the preparation of the record of such interview. The document was provided to the Tribunal upon express terms as to confidentiality which would be set out in detail later in this ruling.
The general issue of the confidentiality of documentation and information furnished to the Tribunal in the course of its inquiries has already been ruled upon and explained in detail in the Tribunal’s initial ruling on confidentiality delivered at the commencement of the Tribunal on the 14th of January 1998 and has been elaborated upon in subsequent rulings of the Tribunal, including those delivered on the 20th of January 1999, the 20th of November 2002, and the 4th of February 2003.
The Tribunal recognises that it has a duty of confidentiality to persons from whom it has received documents or information in confidence. Documents will only be circulated where the Tribunal has determined that they are relevant, admissible and probative. Save in exceptional circumstances, the Tribunal will not circulate documents or information where such documents or information was provided to the Tribunal upon specific terms or conditions or limitations imposed or agreed at the time that the documentation or information was furnished to the Tribunal.
The Tribunal remains at all times the appropriate authority to decide what documentation is relevant, admissible and/or probative in its proceedings, and in particular to decide whether any exceptional circumstances exist such as to warrant a departure form the established rules of confidentiality in any particular instance.
The documents now sought to be considered fall into two categories. Firstly, those prepared in the course of the private investigative stage of the inquiry by members of the Tribunal’s legal team following interview or contact with Mr. Gilmartin and, secondly, the documents provided by Mr. Gilmartin’s then solicitor, Mr. Smyth, to the Tribunal.
The Tribunal has determined that the first category of documents remain confidential to the Tribunal and have ruled that they will not b circulated. The Tribunal is satisfied that there are no exceptional circumstances in existence which merit a departure form the Tribunal’s established procedure.
In relation to the second category of documents, the Tribunal notes that this documentation was provided to the Tribunal upon specific terms set out by Mr. Gimartin’s then solicitor and are quoted verbatim as follows:
The Tribunal is satisfied, having reviewed the circumstances in which this second category of documentation was furnished to the Tribunal, that it is subject to specific assurances on confidentiality and nondisclosure by the Tribunal. The Tribunal does not at this time consider that there are circumstances which merit or which allow for a departure from the terms upon which the document was provided to the Tribunal and, accordingly, refuses the application for its circulation.
The Tribunal is mindful of the fact that it is essential for the efficacy of the Tribunal’s investigation that it has the capacity to treat documentation provided to it in confidence on a strictly confidential basis. Without such capacity, persons providing information to the Tribunal would undoubtedly be dissuaded from providing information which is necessary to the Tribunal to carry out its task. The conduct of private interviews by members of the Tribunal’s legal team, with potential witnesses, and the receipt of information and documentation of a strictly confidential basis are part and parcel of the investigative and information-gathering process with which the Tribunal is charged. It is only in exceptional circumstances that the Tribunal will consider departing from it established procedure.
CROSS-EXAMINING WITHOUT THE DOCUMENTS
It was said at the time, and is repeated in these proceedings, that the relevant documents were required in order to make headway with the cross-examination. Could such headway not have been made without the documents? It appeared to those representing Mr. O’Callaghan that, in at least one respect, it could. It will be recalled that Mr. Gilmartin alleged that at his first meeting with Mr. O’Callaghan, in 1988, he had been told by him about his success in having the Lee tunnel diverted to suit his lands. This seemed capable of contradiction from publicly known or available facts; the tunnel did not open until 1999; work did not commence on the tunnel until 1995; and the decision to construct a tunnel was not made until 1991. The specific land (“the Mahon site”) had not been acquired by the applicant’s company until 1997, as a result of a public tender. These facts are deposed to in the affidavit grounding the present proceedings and are not contradicted. But when an attempt was made to put them in cross-examination, counsel on behalf of the tribunal, Ms. Patricia Dillon S.C., objected:
I am not aware of any documentation furnished at the tribunal in relation to the matters presently been cross-examined by my friend. If there is any such documentation, and I presume there is seeing as he is being so precise about the dates, it is subject to the same rules of the tribunal; and again this is not something that has been furnished to the tribunal and it, I think, comes within the four walls of the previous ruling that was made .... none of this material has been furnished at the tribunal. And it is only the tribunal who decides what materials will be circulated .... the tribunal should have been provided with an additional statement from Mr. O’Callaghan that deals with this matter that could be circulated .... in other words there are no surprises here.
In all the circumstances, the final comment can only be described as amazing.
Counsel for Mr. O’Callaghan demurred:
Chairman, I am not referring to documentation but I think this objection is quite misconceived. Mr. Gilmartin was the person who introduced this piece of evidence, it wasn’t in his statement. Ms. Dillon has not provided us with an additional statement of Mr. Gilmartin’s evidence, it seems one rule applies to Mr. Gilmartin and one rule applies to those who wish to cross-examine; on a large number of occasions he introduced additional evidence, I am not referring to any document, if I was referring to a document I would have complied with the tribunal’s rules and provided it to the tribunal. I am simply putting facts to the witness.
The relevance of these dates was perfectly clear in view especially of the fact that Mr. Gilmartin had alleged that, in December, 1988, Mr. O’Callaghan had told him that he was coming from a dinner for the launch of the tunnel, an event which (however one interprets the phrase “launch”) did not happen for some years afterwards. Moreover, Mr. Gilmartin had himself said just before the sequence quoted that the date of the conversation was “ten years before it went out to tender.” Nevertheless, upon the basis that he also said that he did not know that the decision to build the tunnel was made in 1991, this line of cross-examination was then foreclosed. This was one of the matters in relation to which Mr. Gilmartin expressly stated that he had given the version he later gave in oral evidence to the tribunal privately some five years previously. When it was suggested to him that the conversation he allegedly had with Mr. O’Callaghan in December 1988 was “a creature of your own imaginings” he replied:
“No. No, there is things, which was in my imagination that does exist that I invented, and if you would like to know about them I will tell you. But they were creatures of my imagination, but this definitely isn’t. I don’t need to reduce myself to petty little gossip.”
The applicant submits that the documents in the possession of the tribunal, being accounts, or evidence of accounts, given previously by Mr. Gilmartin of matters relevant to what he now says about Mr. O’Callaghan, are likewise relevant to his cross-examination and that he is entitled to have them for that purpose. The tribunal has refused to make them available on the ground of confidentiality. That is the substantive issue in the case. The tribunal support their substantive argument on the basis of the particular method of approach to their work which they have adopted, and by the proposition that they are “masters of their own procedure”. The tribunal further says that it will make the parties aware of any “significant gross or glaring inconsistency between the evidence given and privately supplied information.”
It will be seen from the foregoing that the issue is a relatively narrow one. The tribunal does not deny that Mr. O’Callaghan is in a position to invoke the rights set out in Re Haughey  IR 217, but it says that these rights are sufficiently available without the provision of the information demanded. It does not deny the relevance of certain of the information at least, but disparages its importance by suggesting that its significance is only that it “might potentially provide him with some ammunition for cross-examination of [Mr. Gilmartin].”
[written submissions, page 5]
“POLICY OF CONFIDENTIALITY”
The tribunal says that it has “adopted a policy that communications to the tribunal or its legal team by potential witnesses during its preliminary examination would in general be regarded as confidential to the tribunal and would not, save in exceptional circumstances, be disclosed to third parties.” This, it says, is desirable in order to encourage persons to make available statements of evidence in advance of being called to a public hearing, which in turn is of advantage to other persons involved. Moreover the policy allows the tribunal to hear in confidence statements which may not be publicly investigated at all. The alternative, says the tribunal, would be to tell all such potential witnesses that all their communications with the tribunal “would as a matter of course be circulated to all relevant parties.” This, it is said, would have a detrimental effect on the work of the tribunal.
Separately, the tribunal says that even if the Court does not accept the submissions summarised above, its decision was nonetheless within its discretion as master of its own procedures. It accepts, however, on the authority of Flood v Lawlor, that this is subject to the constitutional rights of persons appearing before it.
It may be noted that the applicant, Mr. O’Callaghan, has not been concerned to contend for the proposition that all pre-public hearing materials should be circulated as a matter of course but says that Mr. Gilmartin’s private communications with the tribunal should now be disclosed in the particular circumstances that have arisen.
APPROACH TO THE ISSUES
I propose first to consider whether, in the circumstances of the case, the privately communicated material has as a matter of probability a significant and proper potential use in cross-examination. If it has, it will then be necessary to consider the tribunal’s plea of confidentiality.
POTENTIAL PROPER UTILITY OF THE MATERIAL
In approaching this topic it must first be recalled that Mr. Gilmartin is making grave allegations against Mr. O’Callaghan, un-notified to the latter, about matters said to have occurred fifteen or sixteen years ago. In relation to most of these there is not much if anything in the way of objective or independent corroborating evidence. Certain of the allegations as we have seen, relate to conversations at which only two people were present. This sharply contrasts with a situation in which there might be a significant paper trail about a particular transaction. It must also be considered that Mr. Gilmartin himself has agreed that there may be inconsistencies between his evidence and the accounts earlier given by him. Furthermore, in respect of at least two of the allegations which he made without notice – the first and second on the list set out earlier in this judgment – he has positively asserted that he had previously had given an account of these to the tribunal. That, of course, is difficult to reconcile with the fact that Mr. O’Callaghan was not put on notice of them, but it is his sworn evidence and has not been contradicted by or on behalf of the tribunal. That, in turn, may relate to a desire to maintain its policy of confidentiality, but that is only one possibility on the present state of the evidence. One must also bear in mind that Mr. Gilmartin is a witness who made, in a considered way, a very dramatic allegation about having communicated the allegation about his visit to Dáil to Ms. Harney, and then resiled from it when it transpired that that visit was still in the future on the (subsequently ascertained) date of his chance encounter with Ms. Harney.
In Re Haughey  IR 217 at 264 Ó Dálaigh C.J. said in a lapidary passage:
.... In proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his personal property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State either by its enactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.
On that basis, the Court found that a person in that position was entitled to the following “minimum protection”:
That he should be furnished with a copy of the evidence which reflected on his good name;
That he should be allowed to cross-examine, by counsel, his accuser or accusers;
That he should be allowed to give rebutting evidence;
That he should be permitted to address, again by counsel, the committee in his own defence.
Ó Dálaigh C.J. continued that without these rights:
.... No accused – and I speak in the context of the terms of the inquiry – could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte. Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40 s.3 are not political shibboleths but provide a positive protection for the citizen and his good name.
The cross-examination of a witness on the basis of comparing what he has said on oath with an account given on another occasion is one of the longest established of the conventional methods of contradiction. It has been recognised for centuries. Sections 23 and 24 of the Common Law Procedure Act, 1854 provide as follows:
If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement.
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause without such writing being shown to him; but if it is intended to contradict such witness by the writing his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him; provided always that it shall be competent for the judge at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he think shall fit.
Similar provisions occur in the Criminal Law Procedure Act, 1865.
In DPP v GK, Court of Criminal Appeal, unreported, 6th June, 2002, the appellant had been convicted of certain offences on a retrial, after a previous jury had disagreed. Prior to the retrial he had applied to the trial court for a copy of the transcript of the evidence given in the first trial, but this was refused. His conviction was quashed by reason of this refusal. Denham J. referred to the constitutional provision for trial in due course of law and continued:
Inherent in that concept is a fair trial. Inherent both in that section and the fundamental rights [section] of the Constitution is the right to fair procedures. This includes, in a criminal trial, sight of previously sworn statements of a witness. By analogy it also includes the sworn evidence for a witness in a previous mistrial or trial which for one reason or another did not conclude. Counsel for the State referred to the inconvenience of providing such a transcript. However that is not relevant in the circumstances .... In a criminal prosecution when a retrial is ordered for whatever reason and a successful prosecution is dependent on the credibility of one or more of the witnesses for the prosecution, whose evidence is not supported by either forensic or circumstantial evidence, fair procedures require that the accused is furnished with the transcript of the testimony given at the first trial, irrespective of whether or not any inconsistencies in the evidence of the witnesses for the prosecution can be demonstrated at the time that the application to be provided with such a transcript is made. Otherwise, the accused is precluded from confronting witnesses for the prosecution with inconsistencies in their evidence which only became manifest during the retrial. This is all the more so when the outcome of the prosecution is to a large extent depended on whether or not the evidence of the alleged victim is accepted by the jury, or by the Court as the case may be. To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of a capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the accused is, in effect, limited in his or her capacity to defend himself or herself, which offends all principles of justice as they are recognised in this jurisdiction.
It is not considered necessary to review the question as to whether there were material inconsistencies as between the two transcripts. At issue is a fundamental principle of fairness. In the situation of jeopardy in which an accused is based on a trial for a serious crime he or she is entitled to fair procedures. These include the transcript of any previous trials of the issues. This is especially so when the issue of credibility of witnesses is of serious significance.
This judgment was cited with approval by the Supreme Court in BJ. v DPP  4 I.R. 523. In that case the first statement in the nature of a complaint (by a third party) was not available because the guard to whom it was made had omitted to record it. Having cited a portion of the judgment in GK the judgment of this Court continued:
In my view, there is no rational basis for distinguishing between a previous statement made by a witness in a trial and a previous statement made in some other context.
PO’C v DPP  3 IR 87 concerned the difficulties of a prosecution for offences said to have taken place many years in the past. In the course of my judgment I said:
Every effort must be made by both parties but particularly by the prosecution to try to avoid a situation in which there is no island of fact, and where bare assertion can be countered only by bare denial. This must be done first in questioning the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or not, or whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time place or otherwise than they need to be, and any variation between an earlier and a later account must be fully noted and disclosed.
While the proceedings before the tribunal are obviously not a criminal trial, they are proceedings to which the notion of due process is relevant. This is especially so where, as in relation to Mr. O’Callaghan, grave allegations are made, without notice, in circumstances where the credibility of the person making them is a serious issue. Moreover, the Common Law Procedure Act, 1854, which did not refer to criminal cases, clearly envisaged the use of a previous statement, written or oral, in contradiction of a witness. It must be recalled that that statute is procedural in nature: it did not confer a right to contradict a witness by reference to a previous statute, but regulated the procedure for doing so. The right existed before the statute. In my view, it is a matter of common justice, and indeed common sense, that a witness who makes a grave allegation against another may be contradicted out of his own mouth where that is possible. If a right to do this were not assured, cross-examination would be gravely hampered, and even subverted. It is a statement of the obvious to say that the credibility of a particular statement made by a particular person is reduced or destroyed if he has made a contradictory statement on a previous occasion, unless that can be explained in some way. Conversely, consistency enhances the credibility of a statement.
These propositions have been recognised for centuries in the common law. This is demonstrated by the elaborate provision in the law of evidence allowing the proof in certain circumstances of both previous inconsistent statements by a witness under cross-examination on the one hand and proof of previous consistent statements in certain circumstances on the other. If a witness does not “distinctly admit” that he has previously made an inconsistent statement, that fact may be proved, whether the statement is “in writing or reduced to writing”. The Statutes referred to earlier in this judgment, the Common Law Procedure Act, 1854 and the Criminal Procedure Act, 1865 both presume that cross-examination about a former statement may take place (“if a witness, upon cross-examination as to a former statement made by him .... inconsistent with his present testimony ....”). In AG v Cradden  IR 130, a conviction was quashed because counsel for the applicant was permitted only to ask a witness whether she had made a previous inconsistent statement to which she replied first that she could not remember and secondly that she may have done so. That restriction, it will be recalled, is very similar to the restriction imposed by the tribunal in the present case, cited earlier in this judgment. See, generally, McGrath Evidence (Dublin, 2005), where it is also said that the witness should be confronted with the statement and then “be asked whether he or she wishes to change his or her evidence in light of the contents of the statement”. (Emphasis added). The text then continues:
If the witness declines to change his or her evidence, then the cross-examining party can accept that answer and is under no obligation to prove the document. However, if the cross-examining party wishes to contradict the witness using the document, the document must be proved in evidence.
This mode of procedure was authoritatively laid down in AG v Taylor  IR 97. It was, presumably, for the purpose of adopting this procedure that Mr. O’Callaghan’s advisers sought the statements and other material the existence of which was clearly established in evidence.
In other circumstances, a prior consistent statement of a witness may be proved for the purpose of enhancing his credibility. The best known example of this is the admissibility, in sexual cases, of the complainant’s complaint on certain conditions. Similarly, prior statements may be proved to rebut an allegation of recent fabrication; to establish an earlier identification by the witness; when they are part of the res gestae; when they represent the immediate reaction of a person accused of wrongdoing; and when they occur in a document used to refresh memory. For example, in R v Coll  24 LR Ir. 522 a witness who saw a policeman murdered by a mob had made a list of all the persons who were present. This document did not contain the name of the accused: the witness said that this was an error. The prosecution were permitted to prove a prior statement by the witness in which he had mentioned the accused, in order to rebut the suggestion of recent fabrication.
The precise circumstances in which prior consistent or prior inconsistent statements may be proved is now surrounded by a good deal of technical regulation. It is unnecessary to consider this body of material for present purposes: the point is that it has long been established that the comparison of a witness’s earlier account with that which he gives in evidence and the establishment of the consistency or inconsistency of evidence with a previous statement is a factor relevant, and sometimes critical, to credibility. For example, the footballer Roy Keane was on 1st March, 2005, acquitted of assault and associated charges after a District Judge in Manchester found that his teenaged accuser was a “liar and attention seeker” and, therefore, that his evidence could not be relied on. He based this conclusion on grave inconsistencies between the youth’s evidence and an earlier interview he had given to a tabloid newspaper. The effect of the availability to the defence of the witness’s previous, contradictory version of events was thus a dramatic one. But it would have been no less significant had the earlier, inconsistent, version been given in a statement given privately to the prosecuting authorities. If that had occurred it is impossible to see any proper basis on which the statement could be withheld from the defence. Mr. Keane’s case is also a contemporary and simple example of the proposition expounded above, that a prior inconsistent statement, unless explained away, damages and may destroy a witness’s credibility. For reports of Mr. Keane’s case see The Times 1st and 2nd March, 2005, and the Irish Independent for the same dates.
In JO’C v DPP  3 IR 478, at 508, I cited two dicta of the great British jurist, Lord Atkin. He said:
I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts is worth pounds of demeanour.
This was because:
The lynx-eyed judge who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the bench.
Here there are clear and obvious facts – the contents of the previous statements – which are available for comparison with the present evidence of Mr. Gilmartin. On certain aspects at least, there is no other point of comparison available, so that the assessment of his evidence, absent the statements and cognate material, must be impressionistic.
DISCLOSURE OF MATERIALS FOR COMPARISON
A major issue in civil and criminal procedural law is the extent to which either side must make disclosure to the other. This has led to the development of an impressive body of jurisprudence both in the United Kingdom and in Strasbourg. The latter has significantly influenced the former and will no doubt influence our jurisprudence too, in particular through the concept of “égalité des armes”, which might be regarded as the opposite of that state of imbalance and disadvantage described by Ó Dálaigh C.J. as clocha ceangailte agus madraí scaoilte. For present purposes it is unnecessary to go into any great detail on this topic, save to refer to the extensive discussion of it in Blackstone, Criminal Practice (2002) at page 1170ff and the appendices showing the codes of practice applying in this regard in the United Kingdom.
It was indeed a United Kingdom case that gave rise to the most comprehensive articulation of the Strasbourg jurisprudence on the topic of disclosure. This is Rowe & Davis v United Kingdom (2000) 30 EHRR 1. In holding unanimously that the then United Kingdom practices in relation to disclosure constituted a violation of Article.1 of the Convention the Court of Human Rights held, at paragraph 60:
It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party .... in addition Article 6.1 requires, as indeed does English Law, that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused.
In the following paragraph it is acknowledged that:
In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6.1. Moreover in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities ....
For the reasons set out in my judgment in Maguire v Ardagh  1 IR 385, I consider that the hearing of very grave allegations before a tribunal of inquiry which not merely sits in public but whose proceedings are in practise accorded enormous publicity, attracts for persons whose reputations are impugned procedural rights analogous to (though often varying in detail from) those of a defendant in a criminal trial. These are the re Haughey rights.
In saying this, I bear in mind, and do not in any way differ from, what was said by Henchy J. in Kiely v Minister for Social Welfare  IR 267, at 281. Having reviewed certain English cases on fair procedures, including one which said that a requirement that a decision maker base his decision on evidence “means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason has some probative value ....” Henchy J. continued:
With great respect, I cannot accept that those decisions or those dicta correctly represent the law in this State. I do not think it is open to judges here to adopt such a laissez-faire attitude to the vagaries of tribunals exercising quasi-judicial functions. This Court has held, in cases such as In re Haughey  I.R. 217, that Article 40. s. 3., of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v Duke of Norfolk  1 All E.R. 109, 118., ‘There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth’.
I have already contrasted the situation which arose before the tribunal, where allegations of great gravity and involving (if true) great turpitude, and depending in large measure on the credibility of a single witness, were made without notice, with other situations which might arise before an enquiry of some sort. The requirements of natural justice will naturally vary depending on the gravity of what is alleged, whether or not personal responsibility is to be established, whether there is a “paper trail” or other body of uncontradicted evidence or corroboration available, whether the enquiry sits in public or in private and other matters. Enquiries which do not seek to fix individuals with responsibility for grave wrongdoing or which, like the Oireachtas DIRT enquiry, have a large volume of uncontradicted material before it, are in obvious contrast to what the facts of this case reveal. No doubt any Court, asked to review a procedural decision of such an enquiring body, would give full weight to those factors, and refrain from interfering lightly with their legitimate procedural discretions. But this tribunal is at another extreme, and features
very grave allegations some of which, if true, would constitute breaches of the criminal law,
clear and obvious attacks on the good name of Mr. O’Callaghan which is constitutionally protected,
the personal credibility of Mr. Gilmartin as a vital factor,
little or nothing in the way of paper trail or corroboration.
immediate and extensive media coverage of un-notified allegations.
These features, even without the other procedural and substantive oddities and novelties set out in the first section of this judgment, seem to me to require all of the Re Haughey rights, and a very full scope for their exercise, on the part of a person impugned. But the discretion of a tribunal or similar body may be very much greater in a less extreme situation and I do not wish anything said in this context to undermine that discretion.
In Maguire v Ardagh, also, I discussed how, more than a century ago, Charles Stewart Parnell had been vindicated at the special commission set up under the Special Commission Act, 1888, by the destruction of his principal accuser in a cross-examination of remarkable skill. It is unnecessary to repeat these details here but I would point out that, had Parnell’s counsel been precluded from cross-examining that witness from his own previous writings and statements, or compelled to give notice of the documents in advance of cross-examination, he would not have exposed him as a perjurer who attempted to destroy Parnell from a combination of greed and hatred, in the manner in which he did.
THE TAYLOR CASE
But it is not necessary to turn to 19th century causes célèbres to illustrate the importance of cross-examination and, therefore, of the provision of the means for it. I know of no better contemporary example than that which occurred in a neighbouring jurisdiction in 2002 on the trial of three youths for the murder of a young boy, Damilola Taylor. Since, by reason of their age, the names of the defendants were not revealed at the time I forebear to cite the formal title of the case and refer to it instead as Taylor. I propose to refer however to the judgment of Mr. Justice Hooper given in the course of finding the evidence of a particular witness inadmissible at the Old Bailey on the 27th February, 2002. The (English) Central Criminal Court number of the transcript is T 2001 03 88. The murder of ten year old Damilola Taylor in London in November, 2000, attracted widespread publicity in this country and abroad, as well as in the United Kingdom. It may be that this placed the London police under great pressure to bring charges. In any event three boys were charged with the murder and a most important witness for the Crown was a girl who claimed that, as a twelve-year old, she had been present at the killing of the little boy. She gave most graphic and indeed chilling descriptions of that tragic event which, if true, left no doubt of the guilt of certain of the accused. But the trial judge, having heard her evidence and heard her cross-examined about the gross inconsistencies with her earlier statements, excluded it from the consideration of the jury. The Crown immediately dropped the case against one of the accused and the others were all subsequently acquitted either by direction or by verdict of the jury, on all counts.
What is of interest for the purposes of the present case is that Hooper J. came to his conclusion about the girl’s evidence on the basis of what he described as “a very substantial schedule of what the girl had said in various police interviews and in her evidence in court.” This was prepared by counsel. The result was a finding by the learned trial judge that “many of her assertions in her accounts of what she saw and what she did before during and after the incident which resulted in Damilola’s death are demonstrably wrong or are admitted by her to be false. Where her evidence is capable of being checked, it is either not confirmed or is directly contradicted by other evidence which the jury has heard.” The learned judge analysed the schedules carefully and found what he described as “lies”, “embellished lies”, and “contradictions”, the latter being between information given in interviews with the police and information given either in other interviews or, still more significantly, in her evidence in court. These contradictions, significantly, included differing versions of whether she had in fact been present at all at the killing.
Astonishingly, the records of the police interviews also showed that she was put under very considerable pressure by the interviewers including, the judge found at page 22 of his rulings, suggestions that she could get a suspect who was a friend of hers “off the hook” by saying what they desired; that she herself would not have to come back for further interviews in that event; that a sum of money put up as a reward would be “more guaranteed” if she was in a position to say that she had been present at the killing. Almost incredibly, the record of the interviews contain several references to the reward including a passage where, in the presence of a person described as an “appropriate adult” the young witness sang “I’m in the money”. So gross were the child witness’s lies, embellished lies and contradictions that the learned trial judge asked rhetorically, at page 20 of the judgment “Has she remained consistent about anything?”
The Taylor case is of great interest for many reasons. To read the transcript of the learned trial judge’s ruling is to be made to marvel at just how easily a witness can be manipulated, sometimes even unconsciously, by experienced interviewers and got to falsify her own position even though, it appears, she started out without any malice towards the persons she impugned. But its interest for present purposes is that the very elaborate analysis undertaken by the trial judge would have been quite impossible if a written or electronic record of the witness’s interviews with investigators had not been available to him. Without that record, the myriad inconsistencies which deprived her account of credibility would never have come to light. This, in turn, would have been very likely to lead to a grave miscarriage of justice. The same result would have been likely had the tapes and recordings of the private interviews been held back from cross-examining counsel. That is a chilling prospect.
The tribunal, like the learned trial judge in the Taylor case, cannot simply come to a subjective decision of trust or the lack of it in Mr. Gilmartin: it must give rational reasons for either giving or withholding belief in respect of the allegations which he made. Where the witness himself has admitted inconsistencies and omissions, it seems impossible to see how this can be done unless it is in a position to deal with those matters. And if it is to deal with them fairly, it must clearly hear the submissions of the lawyers for those impugned. These submissions, in turn, cannot be made unless the lawyers are aware of the inconsistencies, and able to cross-examine on them. It is difficult to see what anyone whose concern is with the truth has to fear from their revelation.
It therefore appears to me that, in the context of Mr. Gilmartin’s evidence, there is clearly a significant and proper potential use for his previous statements, in cross-examination. To deprive him of this potential would be to hamper and possibly to subvert his ability to cross-examine. There is nothing in the constitution of a tribunal of inquiry, at which cross-examination must be permitted, to restrict the scope or methods of cross-examination beyond those restrictions which apply in other fora. Subject to the tribunal’s arguments based on confidentiality, which will be considered below, there is nothing which excludes the use of documentary records of previous statements which are in the possession of the tribunal from the scope of documents which may be used to contradict a witness. In this particular context, there is also the fact that very serious allegations have been “sprung” on Mr. O’Callaghan (and perhaps on the tribunal as well) without notice, but I do not regard this fact as a necessary ground of the decision.
“SIGNIFICANT, GROSS OR GLARING CONTRADICTION”
The tribunal, of course, is not unconscious of the capacity for injustice in denying an accused party access to the prior statements or communications. On the contrary, it says that it will make such material available, by way of exception to its general policy, if there is a significant gross or glaring contradiction.
I would remark, firstly, that I do not understand the need for those three adjectives. If the tribunal will make such material available in the case of a significant contradiction, then it does not require to consider whether it is also gross or glaring. All these are in any event value judgments. Possibly the other adjectives are used to suggest that only a gross or glaring contradiction will be regarded as significant; that the three words are used in the same sense. I would be alarmed if that were so.
The tribunal does not, of course, dispute that Mr. O’Callaghan is entitled to fair procedures and specifically to the rights set out in the judgment of this Court in Re Haughey. These include a right to cross-examine an accuser by counsel. Oral contradiction in a public forum is the culmination of the work of the cross-examiner but it is by no means the whole of it. All effective cross-examinations, especially in a matter as complex as that before the tribunal, are the result of intensive preparation; as was said in Maguire v Ardagh  1 IR 385 at 705: “Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a particular case is merely the foundation.” I would emphasise in this context, without repeating, what I said in that case at pages 704ff on the central position of cross-examination in the defence of an individual’s constitutional rights.
Referring to the Re Haughey rights cited above it is noticeable that Mr. O’Callaghan had not, in fact, been furnished with a copy of the evidence which reflects on his good name. The reasons for this must be gleaned from the careful and ambiguous terms of paragraph 36 of Ms. Gilvarry’s affidavit. I have already pointed out that there may be reasons for the ambiguity she has created. But, however that may be, the fact is that no copy of such evidence was given. Thus, before one arrives at cross-examination at all, one must notice that the first of the Re Haughey rights was breached.
It has not been suggested that the aspects of the tribunal’s business which concern Mr. O’Callaghan should be halted on that basis. It is said, however, this breach lends force, if needed, to the request for access to the witness’s prior statements.
I cannot regard the willingness of the tribunal to make such disclosure only in what they regard as exceptional circumstances as adequately protecting Mr. O’Callaghan’s position. Firstly, extraordinary though the manner of the making of these allegations was, it was not considered sufficiently exceptional for the tribunal to depart from its policy. Secondly, it is of the essence of the right to cross-examine that, unless there is good reason to the contrary, the cross-examiner, the advocate selected by the person impugned, should have access to the materials for cross-examination. Study and assessment of these materials is a vital part of the process of cross-examination. It is also a vital factor in the formulation of the advice an advocate gives to his client. The client is entitled to have cross-examination, including its vital preparatory stages, conducted by counsel and not by a third party, however august. The reason for this is that counsel, who enjoys the confidence of his client and who is privy to his client’s instructions is in a unique position to assess the usefulness or otherwise of particular material for the purposes of cross-examination. A fact or assertion contained in a prior statement may mean nothing to a person without the factual instructions of the particular client, and a great deal to a person with those instructions. A statement, even an apparently unimportant one, may suggest a means of inquiry or contradiction to properly instructed counsel although it would mean nothing all to a third party.
The foregoing are general observations, based on experience of cross-examination in complicated cases with an extensive range of disputed facts. But their truth can be demonstrated, it seems to me quite conclusively, on the facts of this case. Either Mr. Gilmartin did, or he did not, inform the tribunal in private of the Lee tunnel allegation. If he did so, and he swears that he did, it would appear that the tribunal failed to register its inconsistency with facts in the public domain – that the tunnel was not decided on until 1991, was not commenced until 1995 and did not open until 1999, and that Mr. O’Callaghan’s interest in the lands allegedly mentioned did not accrue until 1997. If he did not make the allegation he now claims to have made to the tribunal in private session, that is in itself a matter which, in the tribunal’s own terms, would fall to be notified to Mr. O’Callaghan’s advisers. But it was not.
The foregoing is not to suggest that the tribunal has been guilty of any incompetence or lack of due diligence. In my view, it is simply impossible for a tribunal which must preserve the appearance and reality of impartiality, and which has hundreds or thousands of issues to consider, to assess what is important to a cross-examiner in a way that a party’s own counsel would. To this it must be added, that in requiring a standard of “glaring, gross or significant” inconsistency before notification takes place, the tribunal is further lessening the chance that it can accurately, much less sensitively, assess what may be important for the purposes of cross-examination.
MATERIAL TO BE LEFT OUT OF CONSIDERATION
The tribunal further says that it will, in arriving at its eventual report, leave out of consideration all material which was communicated to it in private and not rehearsed in the public session.
Firstly, this would be extremely difficult to do having regard to the complexity and scope of the material.
Secondly and more importantly, this exercise will not necessarily enure to the benefit of a person in Mr. O’Callaghan’s position. If the material is such that it should be considered, for example because it contradicts other evidence, it is a positive disadvantage to him that it is not rehearsed in public, and is therefore left out of the account.
Thirdly, the tribunal is conducting its affairs in modules some of which are rather arbitrary: for example the arbitrary cut-off date of 1990 for this module. In Ms. Gilvarry’s affidavit she says that the presently undisclosed material “will not be considered by the tribunal in its deliberations in connection with the present module.” (Emphasis added)
It is very reasonable and perhaps essential that the tribunal should divide its inquiry into manageable units. But this cannot be done in any absolute or watertight manner. This is particularly so when one module is going to be a continuation of a previous one, divided arbitrarily simply for the purposes of convenience. Even more importantly, questions of credibility cannot be subdivided at all in this fashion. It would be ludicrous to give credence to a witness in one module and withhold it in another simply because evidence which destroyed his credibility emerged only in the second. It would be utterly illogical, and unfair, to report on the first when, to the tribunal’s knowledge, material affecting his credibility would be disclosed at a later stage.
CONCLUSION ON THE FIRST ISSUE
For the reasons set out above, I consider that in the circumstances of this case material communicated privately to the tribunal recording or related to allegations made by Mr. Gilmartin about Mr. O’Callaghan, or evidencing an omission to make them in appropriate circumstances, have a significant and proper potential use in cross-examination of Mr. Gilmartin. To deprive him of them would tend to undermine “the truth-eliciting processes of a confrontation which are inherent in an oral hearing” (Kiely v Minister for Social Welfare  IR 267). I therefore consider that Mr. O’Callaghan is entitled to the material which he seeks, unless its provision to him is precluded, as the tribunal claims, by confidentiality.
In AG v Guardian Newspapers Ltd. (No. 2)  1 AC 109 – the Spycatcher case – Lord Goff made the following statement of principle:
I start with the broad principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.
To this very general statement Lord Goff recognised certain limitations amongst which were:
The general principle is premised upon the information being confidential and can therefore have no application once information has entered the public domain.
Confidentiality may be negated by public interest.
Lord Goff, however, did not address the very vexed question as to the origin and nature of duties of confidence more precisely, saying only that:
I have .... deliberately avoided the fundamental question whether, contract apart, the duty lie simply in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained .... or whether confidential information may also be regarded as property.
The fundamental nature of confidentiality is elaborately discussed in Toulson & Phipps, Confidentiality (London, 1996). This work, the first of whose authors is a judge of the High Court of England and Wales, discusses its historical and conceptual origins at some length and concludes that “the essential foundation of the law of confidentiality lies in an obligation arising from the circumstances under which the information was obtained .... [it] is founded on an equitable obligation, for the breach of which the Court may now award monetary compensation in addition to or instead of other equitable remedies.”
Many recent legal assertions of confidentiality take the form of an action claiming damages or injunction restraining breach of confidentiality or (more analogous to the present situation) the assertion of privilege from discovery of confidential material. It is well recognised that confidentiality is not by itself a ground of immunity from disclosure of information or documents in the course of litigation. In Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners  AC 405, Lord Cross said:
‘Confidentiality’ is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest.
It is a public interest in the proper and efficient running of the tribunal which is the basis of the refusal to disclose Mr. O’Callaghan’s prior statements in the present case. Since confidentiality is not a separate heading of privilege it may be regarded as a necessary, but not in itself a sufficient, basis for a claim to public interest immunity from disclosure. Where the purpose for which disclosure is sought relates to the defence of a person accused in a statutory public tribunal of grave wrongdoing, the element over and above confidentiality which requires to be established is that the public interest in preserving the secrecy of the document overrides the public interest in providing the person impugned with fair procedures in his own defence. Analogously, Lord Templeman said in R. v Chief Constable of West Midlands Police  1 AC 274:
A claim to public interest immunity can only be justified if the public interest in preserving the confidentiality of the document outweighs the public interest in securing justice.
Ironically, a common ground of attack on tribunals of inquiry in this jurisdiction has been that they trench on rights to confidentiality and to privacy. This ground of attack was considered in Haughey v Moriarty  3 IR 1 at page 57ff under the heading “Right to Privacy”. The Supreme Court in that case fully acknowledged the right to privacy and confidentiality inhering in the citizen and was prepared to assume that this right extended to privacy and confidentiality of a citizen’s banking records and transactions. It was this privacy that the tribunal chaired by Mr. Justice Moriarty was about to invade. The Court said:
On the other hand, there is a public interest in defeating wrongdoing and where the publication of confidential information may be of assistance in defeating wrongdoing then the public interest in such publication may outweigh the public interest in the maintenance of confidentiality.
Just as public interest in defeating wrongdoing may outweigh the public interest in the maintenance of confidentiality, the exigencies of the common good may outweigh the constitutional right to privacy .... the encroachment to such rights is justified in this particular case by the exigencies of the common good .... both House of the Oireachtas are entitled to assume that the tribunal will conduct its investigation in accordance with the principles of constitutional justice and fair procedures and will only interfere with the constitutional rights of the plaintiffs when, and only to the extent that, it is necessary for the proper conduct of the inquiry.
In National Irish Bank Ltd. v R.T.E  2 IR 465 this Court held that where the publication of confidential information might be of assistance in defeating wrongdoing, then the public interest in such publication could outweigh the public interest in the maintenance of confidentiality.
It might appear ironic that a tribunal of inquiry, a beneficiary of many decisions permitting the invasion of confidentiality in the public interest should here assert it.
I would refer to a passage in the judgment of Denham J. in DPP v GK, Court of Criminal Appeal, unreported, 6th June, 2002.
To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of a capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the accused is in effect limited in her capacity to defend himself or herself, which offends all principles of justice as they are recognised in this jurisdiction.
In my view, the maintenance of what Denham J. described as the “principles of justice as they are understood in this jurisdiction” is every bit as much a part of the public interest as the exposure of wrongdoing. Indeed, in many cases the exposure of the unreliability of a witness will itself amount to the detection of wrongdoing of a particularly noxious sort, one that taints public justice. This, of course, will not be so in every case where evidence proves unreliable.
In the present case one must first look closely at the precise scope and nature of the claim to confidentiality advanced, and determine whether the disputed material is indeed confidential. One must then consider whether such degree of confidentiality as may be found to exist is or is not outweighed by the public interest, based fundamentally on constitutional considerations, in according fair procedures to the applicant in the circumstances in which they are claimed.
(a) Limitation on scope
The tribunal’s substantive case on this appeal was entirely based on confidentiality. This was said to attach to the materials gathered during the preliminary investigation in private. It was conceded that, insofar as this material was subsequently given in evidence, it lost the quality of confidentiality. Accordingly, if and when a person who gave information at the preliminary investigative stage gave evidence in a public sitting consistent with such information, the latter would cease to be confidential at that time. Therefore, on the tribunal’s case, confidentiality could only continue to attach to material which was irrelevant and therefore not given in evidence or to material which was inconsistent with the content of the evidence given in public. Quite apart from these matters (which were necessarily and properly conceded by Mr. Collins S.C. in closing the tribunal’s case on this appeal), the proposition that confidential material loses that quality when it becomes public is a basic proposition of the law of confidentiality: see Toulson and Phipps, op.cit, pp 56ff. It would, to say the least of it, be an unattractive result if such of the privately communicated material as was mirrored in the witness’s oral evidence ceased to be confidential while the privately communicated material which was inconsistent with such evidence, by omission or positive statement, could be concealed indefinitely.
(b) Nature of preliminary investigation
In the resolution of Dáil Éireann declaring the expediency of the establishment of the tribunal, a number of requests are made to that body. At paragraph B(I) it is requested:
To carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts, in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters.
A similar term was included when the remit of the tribunal was extended.
At paragraph 9 of the affidavit of Ms. Gilvarry on behalf of the tribunal she says:
I say that the tribunal has been conducting its inquiry from the time of its establishment and has conducted a number of preliminary investigations in private in the course of its information gathering work. I beg to refer to the tribunal’s amended terms of reference and in particular Clause B(I) which requests the tribunal to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters.
At paragraph 14 she says:
I say that the tribunal is of the opinion that the initial information gathering process can most effectively be undertaken in private.
The tribunal does not, however, rely on the terms of its establishment in order to establish the confidentiality of matters communicated to it in private. It will be observed that the contents of paragraph 9 tends to elide two separate matters: the preliminary investigation in private which it was requested to carry out for the (sole) purpose of determining “whether sufficient evidence exists .... to warrant proceeding to a full public inquiry in relation to such matters” on the one hand and the concept of “its information gathering work”. The first is, and the second is not (except insofar as it overlaps with the first) mentioned in the parliamentary resolutions. These resolutions are silent on the topic of confidentiality. The fact that the preliminary investigation to decide whether there is evidence warranting proceeding to a full public inquiry is itself to take place in private does not of course suggest that, if it is decided to proceed to a full public inquiry, the material is to remain confidential. If material tending to undermine the evidence given in public was to remain confidential, this would smack of a form of management of the material to be revealed to the public, inconsistent with the public nature of the full inquiry.
(c) “A policy”
Instead, the tribunal grounds its case on confidentiality on the basis that it has “adopted a policy that communications to the tribunal or its legal team by potential witnesses during its preliminary investigations would in general be regarded as confidential to the tribunal and would not save in exceptional circumstances be disclosed to third parties.” (Written submissions, page 2).
It does not appear that this policy was reduced to written form at any time prior to the need to make a ruling on applications for certain materials generated in the preliminary investigative stage. Certainly, there is no evidence of any written communication on the topic of confidentiality to Mr. Gilmartin. Nor was there evidence of any oral communication of this sort to him: counsel for the tribunal could only “assume” that there had been oral communication.
It is important to note that the tribunal’s case is based wholly on this policy. Even in relation to the covering letter from Mr. Noel Smyth, solicitor, transmitting (apparently) material communicated to Mr. Smyth by Mr. Gilmartin, and reciting terms inter alia as to confidentiality, counsel for the tribunal on the hearing of this appeal has disavowed reliance on these terms. Moreover, as has been seen, when counsel for one of the parties represented at the tribunal asked Mr. Gilmartin whether he objected to disclosing the document, the chairman of the tribunal intervened before Mr. Gilmartin could answer one way or another and stated that it was not a matter for him to consent or otherwise: it was a matter for the tribunal. The tribunal would not in general make such disclosure but would do so in exceptional circumstances, examples of which have been given above. It would, he said, keep a decision whether or not to do this under review.
The chairman’s intervention just described, as well as other matters noted above, makes it clear that the tribunal is not relying on any contractual form of confidentiality, or on any form of confidentiality based on the interests of the witness. Confidentiality of those kinds could of course be waived by Mr. Gilmartin. The chairman’s assertion that it was not a matter for Mr. Gilmartin to consent or not to consent to the disclosure of the relevant material, but for the tribunal to decide what documentation can be referred to, necessarily implies that the confidentiality in question here is of a unilateral sort, based solely on the tribunal’s policy. Such a form of confidentiality can exist only as a form of public interest confidentiality or something analogous to it.
The principal relevant exception to this policy is one already discussed: that of a significant or glaring omission between the evidence given at a public hearing and the material supplied in private. The Court raised with counsel for the tribunal on the hearing of this appeal the question of whether or not the concept of significant or glaring inconsistencies applied to omissions as well as positive statements: having taken instructions over the luncheon interval counsel stated that a significant or glaring omission would be regarded as an inconsistency.
PRELIMINARY INVESTIGATIONS IN PRIVATE
It is clear from the Dáil resolution and the requests made to the tribunal therein, that Dáil Éireann was properly concerned that the tribunal’s business be completed as cheaply and speedily as possible. This is a wholly legitimate concern, and the tribunal’s concerns in this regard are also entirely legitimate. For the same reasons, the carrying out of a preliminary investigation in private “in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters” is, of course, entirely proper. The tribunal has broadened the purpose of these preliminary investigations to include “information gathering” but the propriety of this has not been challenged in the present proceedings. It will be noted, however, that the advantages said by the tribunal to inhere in this information gathering process in private – that of producing narrative statements by voluntary cooperation; of excluding irrelevant material and of obtaining the voluntary cooperation of potential witnesses – clearly go beyond the purpose mentioned in the Dáil resolutions. This does not, of course, in itself make them illegitimate.
The fundamental duty of the tribunal, however, is where possible to conduct a “full public inquiry”, to quote the words of the Resolution. The publicity of the inquiry is an essential part of its purpose: the public could scarcely be expected to be reassured by an inquiry conducted in private. The tribunal in the end of the day merely reports its opinions and makes recommendations: it does not make binding findings of fact, though its report can, of course, have the effect of vindicating some persons and utterly destroying the reputations of others.
It does not appear to me that any person voluntarily cooperating with the tribunal of inquiry in its private preliminary investigation can exclude from his mind the possibility – in many cases, the probability – that he will be called to give evidence in public about part or all of what he has told the tribunal. In the specific case of Mr. Gilmartin, having regard to the terms of reference of the tribunal, and having regard to the dramatic and far reaching nature of the allegations he made to the tribunal, it was in my view a certainty that he would be called to give evidence. I also find that Mr. Gilmartin, who was professionally advised, was at all material times aware of this. He was a person who presented himself as a witness to certain events and in many instances as the only witness, for example, to private conversations. He could not therefore be likened to an informant who merely points in the direction of a person who can give direct testimony, or a person who gives information on the express basis that he will not be called as a witness. Once called as a witness, on the tribunal’s own account, he gave evidence of matters which were obviously not contained in his circulated statement and he further gave evidence, in relation to certain of these, that he had told the tribunal about them, although they did not feature in his circulated statement. The tribunal did not itself or through counsel suggest that this evidence was improper, unacceptable, or irrelevant. It did not take steps on the public record to stop him making further unprefigured allegations and did not claim that it took any such steps in private. If it did they were clearly ineffective. Mr. Gilmartin further said that there might well be many inconsistencies between an earlier account and a later one.
The tribunal have not been able to point to any other enquiring or enforcing agency which guarantees to a person called as a witness that his previous accounts will be kept secret. Furthermore, they have not proved that they themselves gave this guarantee to Mr. Gilmartin, with or without qualifications. It has been said without contradiction on the part of Mr. O’Callaghan that the tribunal’s “policy” about confidentiality was never communicated to him.
In those circumstances, I do not believe that confidentiality arises automatically or by necessary inference when a person makes very grave allegations to a tribunal which to his knowledge has been established, if there is sufficient evidence, to hold a full public inquiry. On the contrary, I believe that such a person in communicating with the tribunal is clearly and obviously taking a step likely, in this case certain, to lead to his giving evidence in public. It may also be noted that Mr. Gilmartin has, years before the tribunal was established, made complaints about the same subject matter to politicians, to public officials and to an Assistant Commissioner and other members of An Garda Síochána.
I do, however, believe that the tribunal owes an obligation to those who gave information in its preliminary investigative stage, as well as to others, to keep such information confidential unless and until it decides to hold an inquiry in public into the relevant subject matter, and even after that until any person impugned in such material has a proper opportunity for confrontation, challenge and rebuttal. This is on the basis identified by Mr. Justice Carney in Stringer & Murray v The Irish Times Ltd  2 IR 108. There, a newspaper published details of a claim made against the plaintiffs in proceedings instituted by plenary summons, before the matter had come to court. A defence of privilege was filed but this defence was struck out by Carney J. on the basis that “the earliest point in time at which privilege founded on Article 34.1 [of the Constitution] could arise is when a judge becomes involved in some substantial way, which point has not yet been reached in the instant case.”
The fact that the document had entered what the Carney J. called “the preliminary administrative or office stage of litigation” was not sufficient to give rise to a privilege. The rationale behind this decision is clear; material damaging to a party should be revealed only in the course of proceedings before an impartial judge and at which the party impugned has an opportunity to be present and make representations. Any other view, as Carney J. pointed out, “would involve the logical consequence that anybody could be defamed with impunity by the expenditure of the current price of the stamp duty on a plenary summons.”
In my view, the tribunal cannot by the unilateral adoption of a “policy” on its own part confer the quality of confidentiality, absolute unless the tribunal itself waives it, on any material. To permit the tribunal to do this would, in my view, be to allow it in effect to legislate for the deprivation of a party before it of rights to which he is entitled.
Quite apart from this, having regard to the central importance of cross-examination in ensuring the constitutional rights of an impugned party, and the central importance of the deployment of material showing inconsistency in cross-examination, I cannot hold that a policy adopted by the tribunal can limit these rights. To invoke the criteria for the existence of confidentiality set out in the citations above from Lord Goff, I do not believe that it “would be just in all the circumstances” to keep prior statements secret from an impugned party. Indeed, I believe that it would be positively, and very gravely, unjust. For the same reason, I do not believe that the secrecy of these perhaps vital materials can possibly arise from any “obligation of conscience arising from the circumstances in or through which the information was communicated ....”. Indeed, I believe that every prompting of what I might call a legally informed conscience impels one in quite another direction.
For the reasons set out above, I do not believe that statements of Mr. Gilmartin to the tribunal in its private investigative stage, or indeed other statements by him, or statements by other parties recording his complaints, partake of confidentiality except in the limited sense that they should not be revealed until parties impugned have an opportunity to deny and confront. Even this limitation is in the interest of constitutional justice, and not of the tribunal or the witness. I do not believe that the tribunal is entitled unilaterally to change this position by the adopting of a “policy” of its own, especially one which it does not appear to have communicated to anyone until a challenge arose.
“MASTER OF OWN PROCEDURE”
The tribunal have contended that, even if their view of legal confidentiality does not find favour with the Court, we should nonetheless decline to interfere on the grounds of the tribunal is “master of its own procedure”. Its principal reliance in establishing that proposition is on the judgment of Keane C.J. in Lawlor v Flood  3 I.R. 107. In that case the following passage occurs:
[The tribunal] must, of course, observe the constitutional rights of all persons who appear before it or upon whom the decisions of the tribunal or the manner in which they conduct their business may impinge, but making every allowance for that important qualification, the principle remains as I have indicted.
It will thus be seen that the independence accorded to the tribunal in deciding on its own procedures is, and indeed must be, subject to the constitutional rights of those appearing before it or upon whom its decisions may impinge.
For example, in Maguire v Ardagh  1 IR 385, the procedures of an Oireachtas Committee proposing to look into the conduct of certain members of An Garda Síochána in relation to a fatality were, inter alia, considered. Amongst the procedures in question were some which restricted cross-examination. Keane C.J. said:
.... No citizen whose good name may be affected by the proceedings of a committee of this nature and who is required by legal process to attend and given evidence before it can be constitutionally denied in advance the right to cross-examine those whose evidence might so affect his rights. The sub-committee in this case have not expressly denied to the applicants or their counsel the right to cross-examine witnesses but it has undoubtedly reserved the right to subject it to drastic constraints which in my view are at variance with the nature of the right as identified in Re Haughey  IR 217.
A full and unhampered right to cross-examine a person who makes grave allegations against another at a tribunal of inquiry is an important constitutional right. It cannot be impinged upon without a firm basis in law, which must itself be consistent with the Constitution. The only basis suggested here is a unilateral policy of confidentiality adopted by the tribunal, never communicated to Mr. O’Callaghan and doubtfully, if at all, communicated to Mr. Gilmartin. The tribunal’s status as master of its own procedures does not extend to interference with so vital a constitutional right: such interference could not possibly be described as procedural in nature.
“FULL PUBLIC INQUIRY”
I have already found that no legal quality of confidentiality attaches to an allegation made to the tribunal, directly or indirectly, once the subject matter of the allegation becomes the subject of a “full public inquiry”, to quote the words of the parliamentary resolution. That is sufficient to dispose of the issue in this case. I wish however to make certain further comments, because I consider that the claim to secrecy has ramifications which go beyond the private interest of Mr. O’Callaghan or anyone in his position.
The tribunal is now in its eighth year of existence. Its dealings with Mr. Gilmartin have extended over a period of seven years, though not of course continuously. With the exception of the days when he gave evidence in public in March, 2004, all of these dealings have been conducted in private. It is known that what he said in those private dealings are not wholly consistent with what he is now saying but no more than that is known about these admitted inconsistencies. They may be trivial or they may be gross.
The primary purpose of a tribunal of inquiry is to conduct a full public inquiry. The parliamentary request to conduct preliminary investigations in private is for the sole purpose of determining “whether sufficient evidence exists in relation to any of the matters referred to above to warrant to proceeding to a full public inquiry in relation to such matters.” This is a threshold issue, requiring only a bare minimum of evidence.
If the evidence on this module were limited to that of Mr. Gilmartin (which for all I know it may be) there would obviously be sufficient evidence to warrant to proceeding to a full public inquiry, unless the tribunal had for some reason decided that the whole of his evidence was incapable of belief. As noted above, the tribunal has not confined its private inquiries to the sole question of whether there is sufficient evidence to warrant proceeding to public inquiry: it has also used the private inquiry for “information gathering” purposes. This in itself has not been challenged in these proceedings and I make no comment on it. But I am deeply concerned that, if the information gathered in the private phase is to be shrouded in permanent secrecy there is a grave danger of a shift in the very nature of the tribunal itself. This procedure would alter the tribunal from being a public inquiry with a private, limited, preliminary phase to one in which a good deal of the real business would be done in private. Specifically, a tribunal would itself in private have assessed contradictions in a witness’s evidence and have formed the view, without submissions of any kind, that they were not sufficiently “gross, glaring or significant” to warrant exploration in public. There would be a danger, perhaps, if these procedures became general, that a tribunal might itself become invested in the evidence of a particular witness to the point where it became insensitive as to contradictions in his or her evidence. There is also a danger, on the same basis, of the public perception of an element of pre-selection or management of the evidence presented in public and an element of protection of a particular witness, which might be wholly unconscious on the part of a hypothetical tribunal. None of these comments relate to this tribunal. In the present case, the tribunal’s principal concern, undoubtedly, is that the truth of the matters within its remit should emerge, so that it has nothing to fear from the disclosure of Mr. Gilmartin’s prior statements, or documents evidencing prior statements of his. Apart altogether from the private interests of Mr. O’Callaghan, I believe that the public generally are entitled to information which may possibly have a very strong bearing, one way or the other, on his credibility as a witness.
For the reasons set out above I would dismiss the appeal and affirm the order of the learned trial judge. I would only add that, in reaching this conclusion, I have not found it necessary to apply any standard of “anxious consideration” and have therefore not commented on what the learned trial judge said in this regard.
MR. JUSTICE GEOGHEGAN
I have read with interest the judgment of Hardiman J. and I am in complete agreement with him that the appeal should be dismissed and the order of the learned High Court judge affirmed. However, I am writing a short separate judgment because I would prefer to base my own opinion on more limited grounds. This does not mean that I am necessarily disagreeing with anything said by Hardiman J. but rather, I would prefer to postpone consideration of some of the wider issues which he has raised to a case in which it was absolutely necessary to decide them.
The factual background to the judicial review application the subject matter of this appeal is fully set out in the judgment of Hardiman J. and I do not intend to repeat the facts in this judgment.
The purpose of the Tribunals of Inquiry (Evidence) Act, 1921 is to enable matters of urgent public importance to be inquired into by an independent tribunal. Largely due to the extensive terms of reference of these tribunals in recent years, they have necessarily taken a long time. But this would not have been the original intention. If something is of urgent public importance and needs to be inquired into, a necessary corollary of that requirement is that such investigation be completed as efficiently and quickly as possible. In Maguire v Ardagh  1 IR 385 the majority of this court held that the conducting by a subcommittee of the Oireachtas of an inquiry into a fatal shooting by the gardaí capable of leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name was ultra vires in that the holding of such an inquiry was not within the inherent powers of the Houses of the Oireachtas. One of the major factors that led to that conclusion was the existence of the 1921 Act at the time of the enacting of the first Constitution and the well known reasons for the passing of the 1921 Act. The constitutionality of the 1921 Act tribunals has been upheld by this court. Given the clear public interest from time to time in having matters investigated by a 1921 Act tribunal, it may well be that the requirements of the constitutional obligation to vindicate as far as possible the good name of the citizen are in that context somewhat less stringent than in other circumstances. For that reason, I would prefer not to express any view on whether all the rules relating to evidence and cross-examination etc. fashioned by the courts or derived from the Common Law Procedure Acts are necessarily and in all circumstances equally applicable to a 1921 Act tribunal.
In Kiely v Minister for Social Welfare  I.R. 267 Henchy J. in a Supreme Court judgment had important observations to make about the application of the rules of natural justice in tribunals. First of all after rejecting two English authorities T.A. Miller Ltd v Minister of Housing & Local Government  1 WLR 992 and R. v Deputy Industrial Injuries Commissioner, ex parte Moore  1 Q.B. 456 on the basis that dicta contained therein did not represent the law in this State. He went on to say the following at p. 281 of the report.
This Court has held, in cases such as In re Haughey, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently cited dictum of Tucker L.J. in Russell v Duke of Norfolk  1 All E.R. 109, 118:
For the purposes of disposing of this appeal and bearing in mind those observations of Henchy J., I think it is sufficient to rely only on In re Haughey  I.R. 217 and to state that the tribunal in this case did not comply with the requirements of the Supreme Court laid down in that case.
A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work requires that there be such a policy. A literal application of court procedures will often not be either necessary, desirable or efficient. A tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence relevant to that module.
This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with constitutional rights and obligations and that, of course, includes the vindication of a person’s good name. For all the reasons put forward by Hardiman J. much more eloquently than I would be able to do, it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O’Callaghan and of which he had no prior notice, be duly produced. The tribunal relies on an understanding of confidentiality. It is not suggested, however, that the confidentiality was absolute nor could it have been. The tribunal could not possibly ensure absolute confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very matters that it was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of a cross-examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can be judicially reviewed for doing so.
The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In particular having regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the courts must necessarily be applied to every cross-examination in a tribunal.
I am satisfied that in this case the tribunal applied its own policies too rigidly and in the event infringed the Constitution. I would dismiss the appeal.
Re Haughey  IR 217; DPP v GK, Court of Criminal Appeal, unreported, 6th June, 2002; BJ. v DPP  4 I.R. 523; PO’C v DPP  3 IR 87; AG v Cradden  IR 130; AG v Taylor  IR 97; R v Coll  24 LR Ir. 522; JO’C v DPP  3 IR 478; Rowe & Davis v United Kingdom (2000) 30 EHRR 1; Maguire v Ardagh  1 IR 385; Kiely v Minister for Social Welfare  IR 267; AG v Guardian Newspapers Ltd. (No. 2)  1 AC 109; Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners  AC 405; R. v Chief Constable of West Midlands Police  1 AC 274; Haughey v Moriarty  3 IR 1; National Irish Bank Ltd. v R.T.E  2 IR 465; Stringer & Murray v The Irish Times Ltd  2 IR 108; Lawlor v Flood  3 I.R. 107; T.A. Miller Ltd v Minister of Housing & Local Government  1 WLR 992; R. v Deputy Industrial Injuries Commissioner, ex parte Moore  1 Q.B. 456
Common Law Procedure Act, 1854: s.23, s.24
Criminal Procedure Act, 1865
Convention the Court of Human Rights: Art.1
Tribunals of Inquiry (Evidence) Act, 1921
Authors and other references
McGrath Evidence (Dublin, 2005)
Blackstone, Criminal Practice (2002)
Toulson & Phipps, Confidentiality (London, 1996)
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