Quinlivan v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Hamilton C.J.,O'Flaherty J. ,Keane J.,Barrington, J.,BARRON J.
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: 49/97,Record No.49/97,[S.C. No. 210 of 1997]
• Court: Supreme Court

1998 WJSC-SC 2858

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTYJ.

BARRINGTON J.

KEANE J.

LYNCH J.

49/97

50/97

51/97

52/97

QUINLIVAN v. GOVERNOR OF PORTLAOISE PRISON & DPP

IN THE MATTER OF AN APPLICATION UNDER THE HABEAS

CORPUS (IRELAND) ACT, 1781 AND IN THE MATTER OF AN

INQUIRY PURSUANT TO ARTICLE 40.4.2. OF THECONSTITUTION

BETWEEN:

NESSAN QUINLIVAN

Applicant/Appellant

and

THE GOVERNOR OF PORTLAOISE PRISON

Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FORJUSTICE, IRELAND AND THE ATTORNEY GENERAL AND THE COMMISSIONER OF ANGARDA SIOCHANA

Notice parties

Citations:

CONSTITUTION ART 30

CONSTITUTION ART 40

MURPHY V DUBLIN CORPORATION 1972 IR 215

Synopsis:

Practice & Procedure

Discovery; legal professional privilege; letter from Attorney General to Minister for Justice; whether portions of letter not relating to purely legal advice could be discovered Held: Appeal dismissed; discovery not ordered (Supreme Court: Hamilton CJ, O'Flaherty, Barrington, Keane, Lynch JJ 05/03/1997)

Quinlivan & ors. v. Governor of Portlaoise Prison

1 5th day of March1997by Hamilton C.J.[LYNCH CONC]

2 This is an appeal brought by the Applicants herein against the judgment of Mr. Justice Kelly delivered on the 23rd January 1997 in the courseofproceedings claiming discovery of documents. Certain documents were discovered but privilege was claimed in respect thereof. The onus is on the person claiming privilege to establish that the documents are privileged and not subject to the ordinary rules of common law which require the production of all documents relevant to the matters in issue between the parties.

3 Irrespective of what problems the learned trial judge faced with regard to the application before him, the matter was crystallised when it came before this Court and the Appellant's claim relates only to one document, a letter written by the Attorney General to the Minister for Justice on the 1st day of November, 1996 in respect of which the Minister for Justice has claimed privilege. The Attorney General is by virtue of the provisions of Article 30 of the Constitution, the person authorised by the Constitution to be the advisor of the Government in matters of law and legal opinion.

4 It is perfectly true as submitted by Dr. Forde on behalf of some of the Appellants that the Attorney General has apart altogether from the obligations placed on him by Art. 30 of the Constitution many other functions including the obligation where applicable as an organ of the State to vindicate the personal rights of the citizens. However, in writing the letter of the 1st November 1996 he was fulfilling the obligations placed on him by Art. 30 of the Constitution namely as legal adviser to the government and this of course includes members of the Government including the Minister for Justice. The Minister for Justice has, as I have said, claimed privilege in respect of this document on the grounds set forth in the supplemental affidavit sworn by Mr. Dalton, the Secretary of the Department of Justice on the 16th of December, 1996..

5 In the course of this affidavit, the Secretary to the Department of Justice, Tim Dalton, stated that the claim of legal professional privilege in relation tothe documents set forth in Section (a) of Part II of the First Schedule which includes the letter concerned is based on the fact that the documents set out therein are documents directed to or emanating from a legal adviser written for the purpose of rendering and obtaining legaladvice.

6 There is no doubt whatsoever but that communications containing legal advice are privileged documents by virtue of the long-held principles of the common law relating to the privilege attaching to communications between legal advisers and their clients which has always been regarded by the Courts as absolutely essential to and of paramount importance in the administration of justice. People should be entitled to communicate with their legal advisers with a certain and considerable degree of confidentiality and that is the position which was accepted by the learned trial judge.

7 There was also before him a claim by the Minister of executive privilege but having regard to the express finding of the learned trial judge thatthematter was covered by the legal professional privilege, he did not consider it necessary to deal with the question of executiveprivilege.

8 It has been submitted on behalf of the Appellants that it would be open to this Court to examine the document in respect of which privilege was claimed and to edit the document, to separate in the context of the document the portions of it that related to purely legal advice from matters which might be regarded as purely factual and that it would be possible to discover the document as edited. There is no authority produced before this Court to provide justification for this concept of editing communications between professional legal advisers and their clients. It appears to me to be wrong in principle and that the learned trial judge was correct in so finding and certainly it is not supported by any authority opened before this Court.

9 An attempt was made by counsel on behalf of the Appellants to bring this letter within the exception provided for in the concept of legalprofessionalprivilege, viz. that it cannot apply where there has been fraud or moral turpitude of any kind, by claiming and by suggesting that on the evidence contained in the affidavits there was prima facia evidence of a conspiracy between certain organs and officials of the State, the Attorney General, the Director of Public Prosecutions and the Minister for Justice and their respective staff to deprive the Appellant of his constitutional right to liberty. The learned trial judge dealt with this matter in the course of his judgment and found that there was no evidence to substantiate such a claim. He was correct in so finding. It is clear that from time to time that officers of the State may act in concert but that is not evidence of a conspiracy such as envisaged in the proceedings instituted by the Appellants.

10 I personally have considerable doubt as to the relevance of this letter to the issue which is before the courts at the moment, namely, consideration of the question whether the Appellants are in unlawful custody. The position is thatthey are either in unlawful custody at the present time or they are not and that the motives of the persons responsible for their custody is irrelevant. Even if it were relevant, I am satisfied that the legal professional privilege attaches to this document and would dismiss the appeal in respect of this matter.

11 ext58

12 5th day of March,1997, by O'Flaherty J. [LYNCH CONC]

13 As recited in the judgment of the High Court, the contretempsthat arose in this case started on the 8th October last when Judge Lynch sat in the Special Criminal Court when he should not have sat because at that stage he had been removed from the position by the Government. However, unfortunately, through some series of mishaps this information had not been conveyed to the judge.

14 Along the line it was certainly known to the officers of the State that this imperfection was attached to the order of remand - certainly at the start of November. It was not until the night of the 6th/7th November that something was done about it and the appellants were re-arrested and brought before the Special Criminal Court and an order was made on the 7th November by thatcourt, now perfectly validly constituted. It is said that that remand is affected by the previous infirmities: it is alleged that the appellants were in illegal custody.

15 For my part, at the moment, I cannot see that. Once the disqualification of Judge Lynch was detected, of course there was a serious obligation on all the responsible officers of State to do something about it and put the matter right. Perhaps they did not activate themselves at the speed that they should and that is something that might give rise to concern among the ordinary citizens. I do not see how it can affect the validity of the present situation because the clear obligation of the State authorities is to make sure that a trial in due course of law is progressed with as much expedition as possible, although I will accept that that is what has to be debated further in this Article 40 application - at not too great length one would hope.

16 The advice given on the 1st November by the Attorney General to the Minister for Justice was such that in respect of it a claim of legal professional privilege has clearly been made out. The Attorney General is, by the Constitution, the legal advisor to the Government. Nothing could be clearer that he is in the same position as every other legal advisor and the Minister is entitled to get that advice without prying eyes having to look into it for no apparent purpose at all. I would allow the claim of privilege. The only basis on which itcan be questioned is if there is any question of fraud or moral turpitude and these have not been raised.

17 It has been submitted that an inquiry under Article 40 of the Constitution is something special. It is submitted that it will entitle us, in the first instance, to inspect this document and then declare whether the claim for legal professional privilege should be upheld or not. I cannot see any distinction between an inquiry under Article 40 and other forms of litigation as far as a claim of privilege isconcerned.

18 These appellants were undoubtedly in unlawful detention up to the new remand date on the 7th November, because the previous order of the Special Criminal Court was invalid. Questions concerning conscious and deliberate violation of their rights, therefore, do not come into play. That concept is only relevant in the case of arrests and the admission of statements where the presence of conscious and deliberate breach of constitutional...