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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> National Irish Bank Ltd. (under investigation), Re [1999] IESC 18; [1999] 1 ILRM 321 (21st January, 1999) URL: http://www.bailii.org/ie/cases/IESC/1999/18.html Cite as: [1999] IESC 18 |
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1 ILRM 321 (21st January, 1999)
1. This
case raises an important point on the position of the right to silence in Irish
Law.
2. The
appeal is an appeal against the Judgment and Order of Shanley J. made herein on
the 13th day of July, 1998.
4. 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.
5. 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
6. 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, 1990
appointed 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;
7. 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.
8. 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.
9. 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, 1990 and
rejected it as being far too cumbrous having regard to the large number of
prospective interviewees contemplated by the present case.
11. In
his Judgment delivered on the 18th day of June, 1998 Kelly, J. stated:-
12. 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”.
13. The
relevant statutory background to the present case is contained in Sections 10
and 18 of the Companies Act, 1990.
1)
“It shall be the duty of all officers and agents of the company and of
all officers and agents of any other body corporate whose affairs are
investigated by virtue of section 9 to produce to the inspectors all books and
documents of or relating to the company, or, as the case may be, the other body
corporate which are in their custody or power, to attend before the inspectors
when required so to do and otherwise to give to the inspectors all assistance
in connection with the investigation which they are reasonably able to give.
14. The
so called right to silence was developed by the Common Law Courts in reaction
to the abuses of the Courts of Star Chamber. The classic decision on the
position of the right to silence at common law and under the Constitution of
the Irish Free State is contained in the case of the
State
(Mc Carthy) v. Lennon
[1936]
IR 485
.
15. That
case arose out of an amendment made to the Constitution of the Irish Free State
by the Constitution (Amendment No. 17) Act, 1931. The effect of that amendment
was to insert a new Article (Article 2A) into the Constitution of the Irish
Free State the provisions of which Article were to override the subsequent
Articles of the Constitution in the event of a clash between them. The
amendment also established a tribunal with wide ranging powers and, conferred
on Police Officers wide powers of arrest and interrogation and made it a
criminal offence potentially punishable by death, for an arrested person to
refuse to answer certain questions duly put to him under these powers.
16. The
prosecutor, Mc Carthy, had been duly arrested and interrogated under the
provisions of Article 2a He had initially refused to answer questions but,
17. Fitzgibbon,
J., in one of the majority Judgments, described the position of the common law
rule against self incrimination and the effect of Article 2a of the
Constitution of the Irish Free State upon it, as follows-
Article V of that part of their Constitution
which has always been popularly known as the Bill of Rights
18. It
does not appear that Fitzgibbon, J. was suggesting, in the passage quoted, that
the right to silence had obtained the status of a constitutional right under
the Constitution of the Irish Free State but rather that, by virtue of the
provisions of Article 73 of the Constitution of the Irish Free State, the
common law right to silence had continued as part of the law of the Irish Free
State. The distinction, however, was of no importance for that Judgment
because, whatever the status of the right to silence prior to the enactment of
the 17th Amendment to the Constitution of the Irish Free State, by virtue of
that Amendment, it was subordinated to Article 2A of the Constitution.
19. The
majority in the Court seem also to have been influenced by the provisions of
the Bankruptcy Acts and in particular by the construction which had been placed
upon them in
R.
v. Scott 7 Cox,
C.C., 164
which
had held not only that a bankrupt was bound to answer certain questions even if
they tended to incriminate him but also that his answers could be used against
him in a
20. This
proposition was vigorously rejected by Kennedy, C.J. in his dissenting
Judgment. He said (at p.495 of the Report):-
Article 2A was to
prevail over subsequent provisions of the Constitution in the event of an
21. Subsequently
Section 21(4) of the Bankruptcy Act, 1988 provided that:-
22. The
right to silence or privilege against self incrimination was a Judge made law
and could be abridged or abolished at any time by a sovereign Parliament. The
most the Judges could do was to insist that, if Parliament wished to abolish
such a cherished doctrine of the common law it should state its intention
clearly. This was the dilemma which faced the Irish Judges in the case of the
State (Mc Carthy) v. Lennon. The Oireachtas had, for the time being,
untrammelled legislative power. It accordingly had power to introduce the
Constitution (Amendment No. 17) Act., 1931 giving power to the tribunal
established by that Act to inflict penalties up to and including the death
penalty on suspects who refused to answer questions. There was nothing the
Courts could do about it.
23. If
however one regards the right to silence as not merely a common law privilege
but as a constitutional right, one must ask oneself
“What
is the extent of it and what limitations can be placed upon it?. Is a
confession to be rejected because it was obtained by the application of
executive power but to
24. The
provisions of our Constitution invoked by the Appellant as assisting his
submission are Article 40.6.1, Article 40.3 and Article 38.1.
1. “The
State guarantees liberty for the exercise of the following rights, subject to
public order and morality;
1. The
State guarantees in its laws to respect, and, as far as practicable, by its
laws to defend and vindicate the personal rights of the citizen. .
26. In
the context of the present case the effect of Article 40.3 is merely to
reinforce the other two constitutional guarantees the first of which, as
interpreted by this Court, applies to the right to silence generally and the
second of which applies to the conduct of a criminal trial.
1 IR 580
derived
the general right to silence from the right to freedom of expression guaranteed
to citizens by Article 40.6. The Court held that the constitutional right of
freedom of expression carried with it, by necessary implication, the
correlative right to remain silent. In this respect the Court followed the
reasoning of an earlier Supreme Court in the
Educational
Company v. Fitzpatrick (2)
[1961] IR 345
which
derived from the constitutional right of freedom of association the correlative
right to refuse to, associate. In this respect the present Supreme Court
differed from the then President of the High Court Mr. Justice Costello who had
derived the right to silence from Article 38.1 of the Constitution. But the
Court held that the right to silence was not absolute but might in certain
27. In
the Heaney case the Court was dealing with a provision of the Offences against
the State Act, 1939 which was an Act dealing with threats to the security of
the State and the Court held that the curtailment to the right of silence
contained in Section 52 of the Act was no more than was necessary in the
circumstances.
28. The
present case deals with the investigation of commercial fraud. No doubt this
may often be a much less serious matter than the matter under investigation by
the Court in the Heaney case but nevertheless potentially it is a matter of
great importance in modern society.
29. The
powers of Inspectors appointed by the Secretary of State under the British
Companies Act, 1985 are broadly similar to the powers of Inspectors appointed
by the Court under our Companies Act, 1990. For that reason it is interesting
to note that in the Saunders case the European Court of Human Rights in its
Judgment dated the 17th December, 1996 at paragraph 67 said that the powers of
Inspectors appointed under the British Companies Act, 1985:-
Article 6
paragraph 1 would in practice unduly hamper the effective regulation in the
public interest of complex financial and commercial activities (ibid., p.48,
paragraph 62).
30. Accordingly
the Court ‘s sole concern in the present case is with the use made of the
relevant statements at the applicant ‘s criminal trial “.
31. Likewise
if there are grounds for believing that there is malpractice or illegality in
the operation of the banking system, it is essential, in the public interest,
that the public authorities should have power to find out what is going on. It
appears to me that the powers given to the Inspectors under Section 10 of the
Companies Act, 1990, as set out earlier in this Judgment, are no greater than
the public interest requires. Their meaning is clear and they pass the
32. Article
38.1 deals with a different matter. That Article, as reinforced by Article
40.3, deals with the conduct of a criminal trial and provides that no person is
to be tried on any criminal charge
“save
in due course of law.”
The
phrases
“due
course of law”
and
“due
process of law”
like
the phrase
“equality
before the law”
embody
dynamic constitutional concepts into which lawyers have obtained deeper
insights as Society has evolved. But it is doubtful if the principle of
proportionality - so important in other branches of constitutional law - can
have any useful application here. A criminal trial is conducted
“in
due course of law”
or
“with
due process of law”
or
it is not. The question then arises would a trial, at which a confession
obtained from the accused under penal sanction imposed by statute, was admitted
in evidence against the accused, be a trial in due course of law?
33. A
preliminary difficulty arises in attempting to answer this question. The
difficulty is that the conduct of a criminal trial in due course of law is
primarily a matter for the trial Judge. The question of whether a statement is
or is not a voluntary statement depends upon the circumstances in which it was
made. The fact that Inspectors are armed with statutory powers or may even have
invoked them does not necessarily mean that a statement made in reply to their
questions is not voluntary. This consideration appears to have influenced the
learned High Court Judge and to have caused him to decline to give any further
guidance than is contained in his Judgment.
34. Nevertheless
a practical problem has arisen in the course of the Inspectors’
enquiries. The Inspectors and the Solicitors advising the Bank officials
disagree as to the correct interpretation of the Inspectors’ powers and
as to the implications for the Bank officials of answering the
Inspectors’ questions. In these circumstances the Inspectors have applied
to the High Court for guidance. Kelly, J. took the view that the
Inspectors’ application was a proper one and decided to settle the
present issue as the most practicable way of resolving the problems which had
arisen between the Inspectors and the Solicitors for the Bank officials. Under
these circumstances this Court - while
35. Earlier
in this Judgment I have referred to the fact that the majority Judges in the
European Court in the Saunders Case found powers such as those vested in the
Inspectors in the present case to be necessary to enable the public authorities
to investigate fraud. At the same time the Court found that some of the answers
given by Saunders in reply to Inspectors in that case were self incriminating
and that the use made by the prosecution, at the subsequent criminal trial, of
Saunders replies to the Inspectors was such as to deny him a
‘fair
trial”
within
the meaning of Article 6 paragraph 1 of the European Convention on Human
Rights. At paragraph 74 of its Judgment the Court stated:-
36. A
similar line of reasoning led the Constitutional Court in South Africa in
Ferreira
& Ors. v. Levin & Ors.
[1996] ISA 484
to
conclude that part of S.4 17 of the South Africa Companies Act, 1973 was
unconstitutional. The section in question dealt with the examination of
Directors and Officers of an insolvent Company in the course of a winding up.
It provided that any such person should be required to answer questions put to
him notwithstanding that the answer might tend to incriminate him and that
“any
answer given to any such question may thereafter be used in evidence against him
“.
The Court held that the provision contained in the words quoted was
unconstitutional as violating an accused person’s right to a fair trial.
37. A
fundamental rule of Irish law is that a confession is not admissible at a
criminal trial unless it is voluntary. In
The
People (Attorney General) v. Cummins
[1972] IR 312
(at p. 322)
Walsh,
J. delivering the unanimous Judgment of the Supreme Court, reiterated this
principle in the following words:-
38. This
dictum of Walsh, J. was applied by the Court of Criminal Appeal in the later
case of
The
People v. Gilbert
[1973] IR 383
.
In
that case the accused was tried in the Circuit Court on indictment for
receiving a motor car knowing it to have been stolen, contrary to Section 33
s.s.1, of the Larceny Act, 1916. Before the trial a policeman had invoked
Section 107 of the Road Traffic Act, 1961, and had asked the accused to state
who was using the car at a particular time. The accused had answered that he
was using it at that time. Under Section 107 of the Act of 1961 a person
commits an offence if he fails to give any information in his power relating to
the identity of the person using a vehicle, if so requested by a policeman. The
accused had been informed of the penalty under Section 107 before he was
questioned. At the trial of the accused evidence of his incriminating statement
was given and he was convicted.
39. The
Court of Criminal Appeal held that the accused’s statement made in
answering questions posed pursuant to Section 107 of the Road Traffic Act, 1961
was not a voluntary statement and that evidence of that statement should not
have been admitted in evidence at the trial.
41. The
reference to the Road Traffic Acts in the last sentence is puzzling. Presumably
the Court did not wish to cast any doubt on the powers of the Police to collect
information under the Road Traffic Acts. But, in principle, a confession, once
involuntary, would appear to be equally objectionable no matter what the nature
of the criminal prosecution.
42. A
rather different view was taken, albeit obiter, by the Court of Criminal
Appeal, in the case of
The
People v. McGowan
[1979] IR 45
.
In
that case the accused had been arrested under Section 30 of the Offences
against the State Act. He had subsequently made an incriminating statement
which both the trial Court and the Court of Criminal Appeal were satisfied was
a voluntary statement. Section 52 of the Offences against the State Act, 1939
had not been invoked by the police while the accused was in custody under
Section 30 and there was no evidence that the accused was even aware of the
provisions of that Section. The status of statements made by an accused person
in responce to the exercise by the police of their powers under Section 52 of
the Offences against the State Act was not therefore properly before the Court.
The
44. Even
if s.52 of the Act of 1939 had been invoked, or even if the accused had been
aware of its provisions, in the view of this Court the submission would still
not be sound in law. Section 52 of the Act of 1939 is almost identical in terms
with s. 15, sub-s. 1, of Article 2A of the Constitution of the Irish Free
State. In The State (Mc Carthy) v. Lennon the former Supreme Court held that a
statement taken in pursuance of the provisions of s. 15 of Article 2 was
lawfully taken and was admissible in evidence. Counsel on behalf of Mc Carthy
had objected at the trial to the admission of the statement in evidence on the
ground that it was not voluntary, being made under compulsion by reason of the
punishment to which persons declining to answer questions put to them pursuant
to s. 15 of Article 2A rendered themselves liable. In the course of his
judgment, Fitzgibbon J said at p. 500 of the report: - ‘The plain and
obvious effect of Art. 2A sect. 15, is to empower the Garda
Síochána to interrogate persons detained on suspicion under the
Article, and sect. 16 makes it a criminal offence to refuse to answer, or to
answer untruthfully. Therefore statements so obtained are obtained lawfully,
and I know of no law which makes statements or confessions lawfully obtained or
45. The
passage quoted compares Section
52
of
the Offences against the State Act, 1939 with Section 15 s.s.1 of Article 2A of
the Constitution of the Irish Free State but does not advert to the fact that
Article 2A of the Constitution of the Irish Free State overrode all subsequent
Articles of that Constitution whereas Section 52 of the Offences against the
State Act, 1939 is governed by the present Constitution. Moreover it quotes
from Cross on
46. Evidence
without adverting to the fact that Cross was referring to the British
Constitution where Parliament is supreme whereas Statutes of the Oireachtas are
subject to the Constitution and must be interpreted in the light of it.
47. The
State (Mc Carthy) v. Lennon was again referred to by the Court of Criminal
Appeal in the
People v. Doyle (reported with the People v. Madden)
[1977] IR 336
.
The
Judgment of O’Higgins, C.J. in that case contains a discussion of a
hypothetical problem as to whether a person who had been arrested under Section
52 of the Offences against the State Act, 1939 and had given a true account of
his movements in response to a demand made under Section 52 of that Act would
be entitled to refuse to give a second account of his movements and whether, if
he gave such second account, it would be admissible against him at his trial.
But it is clear that the Chief Justice, relying on the decision in
The
State (Mc Carthy) v. Lennon
considered
that the first account which he had given of his movements would be admissible.
The passage appears at pages 356/357 of the Report and reads as follows:-
Article 2A of the Constitution of the Irish Free State) that evidence obtained
as a result of a request made by a member of the Garda Síochána
was lawfully obtained and was admissible in any court, even though the request
was made with the sanction that a refusal to comply with it constituted a
criminal offence. Were it not for the express provisions in s. 52 of the Act of
1939, evidence obtained as the result of informing a person in detention that,
if he did not give an account of his movements, he would be liable to
imprisonment would clearly be inadmissible as a statement obtained under threat
- quite apart from the fact that it would also constitute a breach of the
Judges' Rules. Therefore, if any of the statements made by the accused and
challenged on his behalf had been made by him as a result of a repeated request
for an account of his movements and he had complied on a previous occasion with
a request from the same or another Garda, the question
49. The
Court is not satisfied, having regard, in particular, to the various
protections of the right of silence which have been above set out in this
decision, that the terms of s. 30 and the interrogation expressly authorised by
s.30, sub-s. 5 available to a member of the Garda Síochána in
relation to any person suspected of any crime and in detention, whether under
s. 30 or otherwise; constitutes an invasion of or failure to protect the right
of silence of a citizen. On that basis the Court is satisfied that the
challenge under this heading must fail. The Court does not find it necessary,
therefore, to express
50. From
the above discussion I draw the following conclusion. The decision in
The
State (Mc Carthy) v. Lennon
is
not a safe guide for any person seeking to establish the rights of the citizen
under the Irish Constitution. That decision was based on an interpretation of a
provision deriving from Article 2A of the Constitution of the Irish Free State
which Article was designed to bypass all the constitutional guarantees
contained elsewhere in that Constitution. The fact therefore that Section 52 of
the Offences against the State Act may be almost identical in wording with
Section 15 of Part III of the Schedule to Article 2A of the Constitution of the
Irish Free State is of little relevance. The important distinction is that
Section 15 was intended to be above constitutional challenge while Section
52
is
subject to the Constitution. It appears to me that the better opinion is that a
trial in due course of law requires that any confession admitted against an
accused person in a criminal trial should be a voluntary confession and that
any trial at which an alleged confession other than a voluntary confession were
admitted in evidence against the accused
Article 38 of
the Constitution and that it is immaterial whether the compulsion or inducement
used to extract the confession came from the Executive or from the Legislature.
51. The
relevant provisions of Section 18 of the Companies Act, 1990 may be abbreviated
to read as follows:-
52. There
is no doubt that the quoted provision covers Civil Cases but it is necessary to
address the problem of whether the quoted provision is broad enough to cover
the admission of involuntary confessions in criminal cases. One could argue
that if it was intended to remove the common law privilege against
self-incrimination the Statute should have said so. On the other hand it can be
argued that the Statute expressly preserves legal professional privilege (See
S.23) but does not mention the common law privilege against self-incrimination.
It is therefore possible to argue that had it been intended to
53. However
this line of reasoning becomes irrelevant once one is satisfied that Article 38
of the Constitution confers on accused persons a right not to have involuntary
confessions accepted in evidence at a criminal trial and that this right is
reinforced by the general provisions of Article 40.3 of the Constitution. The
Companies Act, 1990 is a post constitutional Statute and must therefore be
presumed to be constitutional. This means that in interpreting the Act the
constitutional interpretation must be favoured. As Walsh, J., delivering the
Judgment of the Supreme Court, put the matter in
East
Donegal Co-Operative Ltd. v. Attorney General
[1970] IR 317
at
p. 341.-
54. Accordingly
the better interpretation of Section 18 in the light of the Constitution is
that it does not authorise the admission of forced or involuntary confessions
against an accused person in a criminal trial, and it can be stated, as a
general principle, that a confession, to be admissible at a criminal trial must
be voluntary. Whether however a confession is voluntary or not must in every
case in which the matter is disputed be a question to be decided, in the first
instance, by the trial Judge.
55. The
Judgment in this case follows the decision in
Heaney
v. Ireland
[19961
1 IR 580
insofar
as that case decided that there may be circumstances in which the right of the
citizen to remain silent may have to yield to the right of the State
authorities to obtain information. It is not inconsistent with the decision
Rock
v. Ireland
[1998]
2 ILRM 37
that
there may be circumstances
56. In
the course the submissions the question arose of what would be the position of
evidence discovered by the Inspectors as a result of information uncovered by
them following the exercise by them of their powers under Section 10. It is
proper therefore to make clear that what is objectionable under Article 38 of
the Constitution is compelling a person to confess and then convicting him on
the basis of his compelled confession. The Courts have always accepted that
evidence obtained on foot of a legal search warrant is admissible. So also is
objective evidence obtained by legal compulsion under, for example, the drink
driving laws. The Inspectors have the power to demand answers under Section 10.
These answers are in no way tainted and further information which the
Inspectors may discover as a result of these answers is not tainted either. The
case of
The
People v. O’Brien
[1965] IR 142
,
which
deals with evidence obtained in breach of the accused’s constitutional
rights has no bearing on the present case. In the final analysis however, it
will be for the trial Judge to decide whether, in all the circumstances of the
case, it would
57. In
these circumstances I would uphold the decision of the learned High Court Judge
but would add the statement that a confession of a Bank official obtained by
the Inspectors as a result of the exercise by them of their powers under
Section 10 of the Companies Act, 1990 would not, in general, be admissible at a
subsequent criminal trial of such official unless, in any particular case, the
trial Judge was satisfied that the confession was voluntary.