Re National Irish Bank Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrington |
| Judgment Date | 21 January 1999 |
| Neutral Citation | [1999] IESC 18 |
| Court | Supreme Court |
| Date | 21 January 1999 |
[1999] IESC 18
THE SUPREME COURT
O'Flaherty, J.
Barrington, J.
Murphy, J.
Lynch, J.
Barron, J.
and
Citations:
COMPANIES ACT 1990 PART II
COMPANIES ACT 1990 S10(5)
COMPANIES ACT 1990 S10
COMPANIES ACT 1990 S18
MCCARTHY, STATE V LENNON 1936 IR 485
R V SCOTT 7 COX CC 164
MCALLISTER, IN RE 1973 IR 238
BANKRUPTCY ACT 1988 S21(4)
R V DIRECTOR OF SERIOUS FRAUD OFFICE 1993 AC 1
MURPHY V WATERFRONT COMMISSIONERS 1964 378 US 52
CONSTITUTION ART 40.6.1
CONSTITUTION ART 40.3
CONSTITUTION ART 38.1
HEANEY V IRELAND 1996 1 IR 580
EDUCATIONAL CO V FITZPATRICK (NO 2) 1961 IR 345
COMPANIES ACT 1985 (UK)
SAUNDERS V UNITED KINGDOM 23 EHRR 313
AG, PEOPLE V GILBERT 1973 IR 383
FERREIRA V LEVIN 1996 1 SA 984
AG, PEOPLE V CUMMINS 1972 IR 312
DPP, PEOPLE V MCGOWAN 1979 IR 45
OFFENCES AGAINST THE STATE ACT 1939 S52
DPP, PEOPLE V MADDEN 1977 IR 336
DPP, PEOPLE V QUILLIGAN (NO 3) 1993 2 IR 305
COMPANIES ACT 1990 S23
EAST DONEGAL CO-OP LTD V AG 1970 IR 317
ROCK V IRELAND 1998 2 ILRM 37
AG, PEOPLE V O'BRIEN 1965 IR 142
Synopsis
Company Law
Inspectors; investigation under the Companies Act, 1990; right to silence; self- incrimination; natural persons; trial in due course of law; investigation into affairs of NIB; claim that employees and former employees were entitled to refuse to answer questions put by Inspectors on the grounds of possible self incrimination; whether interviewees were entitled to refuse to answer questions on grounds that their answers might be incriminating; whether Court should give guidance as to correct interpretation of Inspectors” powers and implications for bank officials in refusing to answer questions put to them by Inspectors; whether statements given to Inspectors would be admissible at a subsequent criminal trial; Arts. 40.6.1, 40.3 and 38.1 of the Constitution; ss. 10 & 18, Companies Act, 1990 Held: Interviewees not entitled to refuse to answer questions; statement only admissible at subsequent criminal trial if trial judge satisfied confession was voluntary National Irish Bank, In re - Supreme Court: O' Flaherty J., Barrington J., Murphy J., Lynch J. and Barron J. - 21/01/1999 - [1999] 3 IR 169 - [1999] 1 ILRM 321
The officials of the bank, the subject of the inspectors investigations, are not entitled to refuse to answer questions properly put to them pursuant to the inspectors statutory powers. However, the question of whether a confession is admissible evidence in a subsequent criminal trial is a matter to be decided by a trial judge having regard to the principle that the confession should be voluntary. The Supreme Court so held in further saying that in determining whether a confession has been forced or induced it is immaterial whether the compulsion or inducement comes from the executive or the legislature.
Mr. Justice Barrington delivered on the 21st day of January, 1999. [Nem diss]
This case raises an important point on the position of the right to silence in Irish Law.
The appeal is an appeal against the Judgment and Order of Shanley J. made herein on the 13th day of July, 1998.
By his said Order the learned trial Judge declared:-
(i) "That persons (whether natural or legal) from whom information documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that these answers or documents may tend to incriminate him/her or it.
(ii) That the procedures outlined by the Inspectors in their letters dated the 4th day of June, 1998 (contained within exhibits C and D to the Affidavit of John Blayney and Tom Grace sworn on the 11th day of June, 1998) are consistent with the requirements of natural and constitutional justice".
In the course of the hearing before this Court Counsel for the Appellants abandoned their appeal against the second declaration quoted above. In the course of their written submissions Counsel had stated that they were only concerned with the rights of natural persons and were not concerned to argue the case for legal persons.
The present appeal accordingly is concerned only with the right to silence so far as it affects natural persons. This means, in effect, that the Court is concerned with the rights of Mr. John O'Reilly and other employees of the National Irish Bank Ltd. in respect of whom he is the representative Respondent and Appellant.
On the 30th March, 1998 the High Court, on the application of the Minister for Enterprise and Employment, pursuant to S. 8(1) of the Companies Act, 1990appointed the Honourable Mr. John Blayney, a retired Judge of the Supreme Court, and Mr. Thomas Grace, FCA, to be joint Inspectors to investigate and report on the affairs of National Irish Bank Ltd. relating to;
(i) The improper charging of interest to accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(ii) The improper charging of fees to accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(iii) The improper removal of funds from accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(iv) All steps and action taken by National Irish Bank Ltd., its Directors and Officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered.
(v) The manner in which the books records and accounts of the said National Irish Bank Ltd. reflected the foregoing matters.
(vi) The identity of the person or persons responsible for and aware of any of the practices referred to above.
(vii) Whether other unlawful or improper practices existed in National Irish Bank Ltd. which served to encourage the evasion of any revenue or other obligations on the part of the Bank or third parties or otherwise".
The Inspectors, having carried out extensive preparatory work, intended to commence interviewing employees of the Bank on the 28th May, 1998. However four firms of Solicitors wrote to the Inspectors on behalf of employees or former employees. One firm represents seventy-five such persons, another five, another a single retired employee and the fourth also represents a single retired employee. The relevant issue raised by the Solicitors, so far as the present appeal is concerned, is whether interviewees, in the context of an investigation under Part II of the Companies Act, 1990, have a right to refuse to answer questions put by the Inspectors on grounds of possible self incrimination, and, if they have not, whether answers or other evidence obtained from the employees can be used against them in any subsequent criminal trial.
The Inspectors who had been advised that interviewees would not have the right to refuse to answer questions on the grounds that the answers might be incriminating, applied to Mr. Justice Kelly in the High Court for directions.
Kelly, J., in deciding to settle the present issue for decision by the High Court referred to the procedure set out in S.10 s.s.5 of the Companies Act, 1990and rejected it as being far too cumbrous having regard to the large number of prospective interviewees contemplated by the present case.
The relevant provision of S.10 s.s. 5 provides that in a case where "If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection (2) refuses to produce to the inspectors any book or document which it is his duty under this section to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case..……"
In his Judgment delivered on the 18th day of June, 1998 Kelly, J. stated:-
I am also satisfied that it would not be in the interest of an expeditious and efficient conduct of the investigation or indeed in the public interest that these matter be left to be dealt with under the procedures prescribed in S.10 (5) of the Act. They would involve a cumbersome, time consuming and wholly unsatisfactory way of dealing with these matters, particularly in the context of a large number of proposed interviewees. The operation of that subsection would require individuals to be called before the Inspectors and upon refusing to answer questions, the Inspectors in each case certifying that refusal to this Court and a subsequent hearing of the matter.
Under S.7 (4) of the Act the Court is entitled to give directions. That subsection reads -
“Where the Court appoints an Inspector under this Section or Section 8 it may, from time to time, give such directions as it thinks fit, whether to the Inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible”.
I am satisfied that this is an appropriate case in which give directions so that these issues may be determined fairly, efficiently and with the minimum of costs being incurred".
The relevant statutory background to the present case is contained in Sections 10 and 18 of the Companies Act, 1990.
Section 10 (so far as relevant and as modified as a result of the decision of the Supreme Court in Desmond & Ors v. Glackin & Ors ...
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