Re National Irish Bank Ltd (No 1)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 21 January 1999
• Date: 21 January 1999
• Docket Number: [H.C.

High Court

Supreme Court

[H.C. 1998 No. 89 COS and S.C. No. 235 of 1998]

Re National Irish Bank Ltd (No. 1)

In the matter of National Irish Bank Limited (under investigation) and in the matter of the Companies Act, 1990 (No. 1)

Cases mentioned in this report:-

Desmond v. Glackin (No. 2) [1993] 3 I.R. 67.

East Donegal Co-Operative v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Others (No. 2) [1961] I.R. 345; 97 I.L.T.R. 16.

Fayed v. United Kingdom (1994) 18 E.H.R.R. 393.

Ferreria & Others v. Levin & Others [1996] I.S.A. (South Africa) 484.

In re Haughey [1971] I.R. 217.

Heaney v. Ireland [1994] 3 I.R. 593; [1996] 1 I.R. 580.

In re London United Investments plc. [1992] Ch. 578; [1992] 2 W.L.R. 850; [1992] 2 All E.R. 842; [1992] B.C.L.C. 91.

In re McAllister [1973] I.R. 238.

Murphy v. Waterfront Commissioners (1964) 378 U.S. 52.

The People (Attorney General) v. Cummins [1972] I.R. 312; (1972) 108 I.L.T.R. 5.

The People (Attorney General) v. Gilbert [1973] I.R. 383; (1973) 107 I.L.T.R. 89.

The People (Attorney General) v. O'Brien [1965] I.R. 142.

The People (Director of Public Prosecutions) v. Michael McDonagh [1996] 1 I.R. 565.

The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305.

The People v. Doyle (reported atThe People v. Madden) [1977] I.R. 336.

The People v. McGowan [1979] I.R. 45.

Reg. v. Director of Serious Fraud Office, Ex p. Smith [1993] A.C. 1; [1992] 2 W.L.R. 66; [1992] 3 All E.R. 456.

Reg. v. Scott 7 Cox, C.C., 164.

Rock v. Ireland [1997] 3 I.R. 484; [1998] 2 I.L.R.M. 35.

Saunders v. United Kingdom (1997) 23 E.H.R.R. 313.

The State (McCarthy) v. Lennon and Others [1936] I.R. 485.

Constitution - Right to silence - Privilege against self-incrimination - Whether correlative right to constitutional guarantee of freedom of expression - Constitution of Ireland, 1937, Articles 38.1 and 40.6.1 (i).

Statutory interpretation - Right to silence - Privilege against self-incrimination - Whether privilege against self-incrimination abrogated by statute - Whether witness entitled to refuse to answer questions on grounds that answers may incriminate - Companies Act, 1990 (No. 33), s. 18 - Constitution of Ireland, 1937, Articles 38.1 and 40.6.1 (i).

Motion on notice.

The facts and relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Shanley J.,infra.

By notice of motion dated the 11th June, 1998, the inspectors appointed to investigate and report on the affairs of the company under investigation sought the directions of the High Court on a number of matters in consequence of which the High Court (Kelly J.) directed that there be a trial of two issues identified in the notice of motion.

The first issue was a determination that persons, whether natural or legal, from whom information, documents or evidence were sought by the inspectors in the course of their investigation were not entitled to refuse to answer questions put by the inspectors, or to refuse to provide documents to the inspectors on the grounds that the answers or documents might tend to incriminate him, her or it. The second issue was a determination that the procedures proposed to be adopted by the inspectors were consistent with the requirements of natural and constitutional justice.

The inspectors were directed to serve the notice of motion on the Attorney General, the Minister for Enterprise and Employment and on an employee, the representative respondent, who represented a number of employees of the company under investigation.

The motion was heard by the High Court (Shanley J.) on the 25th, 26th and 30th June, 1998, and on the 1st and 2nd July, 1998.

The representative respondent appealed to the Supreme Court by notice of appeal dated the 4th August, 1998, against the judgment and order of the High Court (Shanley J.). The appeal was heard by the Supreme Court (O'Flaherty, Barrington, Murphy, Lynch and Barron JJ.) on the 4th November, 1998.

Article 38.1 of the Constitution of Ireland, 1937, provides that"No person shall be tried on any criminal charge save in due course of law."

By virtue of Article 40.6.1 (i) of the Constitution, the State guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions, subject to public order and morality.

Part II of the Companies Act, 1990, provides a mechanism for the investigation of companies by inspectors appointed pursuant to the Act. The inspectors are given the power,inter alia, to compel answers and to compel the production of relevant documents from all officers and agents of a company whose affairs are under investigation.

Section 18 of the Act of 1990, provides:-

"An answer given by a person to a question put to him in exercise of powers conferred by -

• (a) section 10;

• (b) section 10 as applied by sections 14 and 17; or

• (c) rules made in respect of the winding-up of companies whether by the Court or voluntarily under section 68 of the Courts of Justice Act, 1936, as extended by section 312 of the Principal Act; may be used in evidence against him, and a statement required by section 224 of the Principal Act may be used in evidence against any person making or concurring in making it."

Two inspectors were appointed by the High Court on the application of the Minister for Enterprise and Employment, pursuant to s. 8 (1) of the Act of 1990, to investigate and report on,inter alia, the improper charging of interest, the improper charging of fees and the improper removal of funds from the accounts of customers of the company under investigation between 1988 and 1998.

The inspectors proposed a two stage procedure for their investigation: the first, an information gathering exercise by way of informal interviews; the second, which would only arise when the first stage indicated a possibility that adverse conclusions could be drawn in relation to certain individuals, consisting of a hearing at which such individuals could have legal representation, could cross-examine witnesses, and could give evidence themselves.

The inspectors sought the directions of the High Court as to whether persons from whom information, documents or evidence was sought by the inspectors were entitled to refuse to answer questions put by the inspectors or to refuse to provide documents to the inspectors on the grounds that the answers or documents might tend to incriminate him, her or it and as to whether the procedure proposed by the inspectors was consistent with the requirements of natural and constitutional justice.

It was submitted on behalf of the representative respondent that persons, from whom information was sought, should be entitled to avail themselves of the privilege against self-incrimination, and accordingly, should not be compelled to answer questions tending to incriminate them. It was further submitted that s. 18 of the Act of 1990 was invalid having regard to the provisions of the Constitution, if it was authorising the admissions of compelled answers in subsequent criminal proceedings.

Held by the High Court (Shanley J.), in determining the two issues, 1, that the privilege against self-incrimination was a correlative right to the constitutional guarantee of freedom of expression.

Heaney v. Ireland [1996] 1 I.R. 580 applied.

2. That the right to silence was not an absolute right and could be abrogated, expressly or impliedly, by statute.

Heaney v. Ireland [1996] 1 I.R. 580 applied.

3. That, in determining whether a particular statute restricted the right to silence, a proportionality test had to be applied. The court had to decide whether the restriction placed on the right to silence by statute was any greater than was necessary to enable the State to fulfil its obligations under the Constitution.

The People (Attorney General) v. Gilbert [1973] I.R. 383;Rock v. Ireland[1997] 3 I.R. 484;The People v. McGowan[1979] I.R. 45;In re London United Investments plc.[1992] Ch. 578approved.

4. That the only entitlement expressly given to a person to refuse to answer a question, which might tend to incriminate him, was where such an answer would disclose information the subject of legal professional privilege.

5. That, as a matter of statutory interpretation, s. 10 of the Act of 1990, impliedly abrogated the privilege against self-incrimination, and accordingly, a person could not refuse to answer questions on the grounds that such answers might incriminate him.

6. That s. 10 of the Act of 1990 was constitutional in that the abrogation of the right to silence contained in the section was no greater than was necessary to enable the State to fulfil its constitutional obligations.

7. That the procedures proposed to be adopted by the inspectors accorded with the requirements of natural and constitutional justice

The representative respondent appealed to the Supreme Court.

Held by the Supreme Court (O'Flaherty, Barrington, Murphy, Lynch and Barron JJ.), in dismissing the appeal, 1, that the right to silence was not absolute but could in certain circumstances give way to the exigencies of the common good, provided that the means used to curtail the right were proportionate to the public object to be achieved.

Heaney v. Ireland [1996] 1 I.R. 580 considered.

2. That if there were grounds for believing that there was malpractice or illegality in the operation of the banking system, it was essential, in the public interest, that the public authorities had the power to investigate the matter fully.

3. That the powers given to the inspectors under s. 10 of the Act of 1990 were no greater than those which the public interest required, in that their meaning was clear and they passed the proportionality test.

4. That the interviewees were not entitled to refuse to answer questions properly posed to them by the inspectors.

5. That what was...