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Cite as: [2004] IESC 3, [2004] 1 IR 334

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Desmond v. Moriarty [2004] IESC 3 (20 January 2004)


    NO. 336/2003

    Denham J.

    McGuinness J.

    McCracken J.







    Judgment delivered on the 20th day of January, 2004 by Denham J. [Nem Diss]

    1. Appeal

    This is an appeal by Dermot Desmond, the applicant/appellant, hereinafter referred to as the applicant, from the judgment and order of the High Court (Quirke J.) made on the 8th day of August, 2003 wherein the reliefs the applicant sought by way of judicial review were refused.

    2. Tribunal

    The respondent is the sole member of the Tribunal of Inquiry into payments to Charles Haughey and Michael Lowry, hereinafter referred to as the Tribunal.

    3. Resolution

    A resolution was passed by Dáil Éireann on the 11th day of September, 1997 and by Seanad Éireann on the 18th day of September, 1997 resolving that it was expedient that the Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921 as adapted by or under subsequent enactments to inquire urgently into and report to the clerk of the Dáil and make such findings and recommendations as it sees fit into stated definite matters of urgent public importance set out in paragraphs (a) to (j).

    4. Terms of Reference

    Paragraph (g) of the said terms of reference are relevant and request the Tribunal to inquire:

    "(g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision."

    The paragraph (e) and (f) referred to state:

    "(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office Act, 1995 or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.

    (f) The source of any money held in the Bank of Ireland, Thurles Branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry."

    5. Issue

    At issue in this case are the decisions and the ruling by the Tribunal as to the final report on Chestvale Properties Limited and Hoddle Investments Limited by John A. Glackin, which was published on the 1st day of July, 1993, hereinafter referred to as "the Glackin Report." The Glackin Report is a public document. It contains findings critical of the applicant.

    6. Award of Mobile Telecommunications Licence

    The Tribunal is currently engaged in investigating whether the award of the second mobile telecommunications licence, which took place between October, 1995 and May, 1996 to the ESAT Digifone consortium, was compromised or influenced in any improper manner by Michael Lowry in return for any payment received by him.

    7. Relevant Facts

    Relevant facts were found by the learned trial judge as follows:

    "In the course of its work the Tribunal is presently investigating decisions made in 1995 and 1996 to award a second GSM telephone licence to a consortium (hereafter called ESAT Digifone) which comprised Telenor (the Norwegian State telephone company), ESAT Telecom Ltd. (a company representing the interests of Mr. Denis O'Brien) and IIU Nominees Limited (hereafter referred to as IIU) a company beneficially owned by the applicant who is a well-known and successful business man.

    A competition for a second GSM licence was announced on 2nd March, 1995. Six applications were received and assessed by an evaluation team (hereafter called the evaluation team) established by the Department of Transport, Energy and Communications (hereafter called the Department). The evaluation team was headed by a senior official of the Department, Mr. Michael Brennan.

    In the course of the evaluation process each applicant (of whom ESAT Digifone was one) was afforded the opportunity to make an oral presentation to the evaluators. During its oral presentation it was asserted on behalf of ESAT Digifone that it comprised a consortium in which Telenor and ESAT Telecom Ltd. each had a 40% interest with the remaining 20% interest divided equally between four financial institutions (hereafter called the financial institutions), Advent International, Investment Bank of Ireland, Standard Life Ireland and Allied Irish Banks Ltd.

    The report of the evaluation team recommended that the second GSM licence should be awarded to ESAT Digifone subject to the negotiation of satisfactory licensing terms. The result of the competition and the identity of the winner was announced by the, (then), Minister for Transport, Energy and Communications, Mr. Lowry on the 25th October, 1995.

    From the 8th August, 1995 the applicant was involved in negotiations with a view to becoming a member of the Consortium. These negotiations were informally concluded on the 18th September, 1995. Subsequently the applicant formally became a member of the Consortium on the 29th September, 1995 on terms that the interests of both Telenor and ESAT Telecom Limited would each be reduced to 37.5% with the applicant becoming the owner of the remaining 25% interest in the Consortium.

    Neither the evaluation team nor the Department were notified of the negotiations between the 8th August, 1995 and 29th September, 1995 which culminated in the reconfiguration of the share interests in ESAT Digifone and the acquisition by the applicant of a 25% interest in the consortium although a letter was sent to the Department on the 29th September, 1995 from IIU for the attention of Mr. Martin Brennan in the following terms:

    'Dear Sirs,

    We refer to the recent oral presentation made by the Consortium to the Department in relation to their proposal for the second GSM cellular mobile telephone licence. During the course of the presentation there was a detailed discussion in relation to the desirability of equity finance to the Consortium from Communicorp and a number of institutions. We confirm that we have arranged underwriting on behalf of the Consortium for all of the equity (i.e. cira 50%) not intended to be subscribed for by Telenor. In aggregate the Consortium now has available equity finance in excess of £58 million.

    We do not foresee any additional need for equity, however, we are confident that if such equity is required we will not have difficulty in arranging it.

    Yours faithfully,

    Professor Michael Walsh,

    Managing Director.'

    That letter was rejected and returned by the Department on the grounds that the evaluation team was not at liberty to receive any new information from applicants at that time. It has been suggested on behalf of the applicant that this letter comprised notice to the evaluation team or to the Department of the applicant's acquisition of an interest in ESAT Digifone."

    8. Opening Statement

    The opening statement of the Tribunal on this module commenced:

    "The Tribunal will inquire, in the course of its public sittings as to what were true facts concerning ESAT Telecommunications Holdings Limited's financial position as at and prior to the 16th May, 1996. It will then be a question for the Tribunal as to the extent to which the Department was aware of those facts. If the Department were not aware of the true facts, the Tribunal will inquire as to whether this was due to any intervention on the part of or to influence exerted by Michael Lowry or, to the extent to which it is relevant, whether it was due to some other factor. The Tribunal will also wish to enquire into the true facts surrounding the identity of the consortium, that is to say the identity of the Applicants for the licence and the true facts surrounding the ownership proposals as required by paragraph three of the RFP. In this connection, the following questions will need to be examined in the course of the Tribunal's public sittings.

    A. Who are the true Applicants behind the ESAT Digifone application?

    B. What are the true facts concerning the identity of the Applicants known to

    the evaluators, and if those facts were not known to the evaluators, was this due to any intervention on the part of or any influence by Michael Lowry?

    C.(1) What were the true facts concerning the ownership of the ESAT Digifone consortium or the licensee proposed by that consortium, and were those facts truly stated in the application evaluated by the evaluators as part of the GSM competition process?

    (2) What was the state of knowledge of the evaluators concerning those facts as at the date of receipt of the application, at any time during the course of the evaluation process, at the date of the announcement of the result, at any time during their licence negotiations and at the date of the issue of the licence?"

    9. Daily Transcript

    The applicant has legal representation at the Tribunal. His legal advisors receive a daily transcript of the public proceedings of the Tribunal. His legal advisors have the right to attend the Tribunal and cross-examine witnesses. If absent the legal advisors of the applicant are entitled to recall witnesses and to cross-examine them. They may also make legal submissions.

    10. Documents Deemed Relevant

    On 29th November, 2002 the solicitors of the applicant received from the Tribunal eighteen files containing documents deemed relevant to the module. Eight of the files contained memoranda of intended evidence to be given by sixty four witnesses. Included in the files was a document entitled "Memorandum of Intended Evidence of Mr. Greg Sparks." On the final page of this document there was reference to the applicant as follows:

    "I understand that ESAT Digifone at that time was not financially strong. I acknowledged that with the licence it would have no problem raising the capital but I would have thought that its current financial status was relevant. I went on to say that I also had heard rumours that Mr. Dermot Desmond was a shareholder and queried had his involvement been considered in the light of the Johnson Mooney and O'Brien Report that had been issued earlier by Ruairí Quinn while Minister for Enterprise and Employment. The Tánaiste was not aware of these points."

    The Johnson Mooney and O'Brien Report was another name for the Glackin Report. There was no other reference to the Glackin Report in the documents furnished.

    11. Mr. Martin Brennan

    Mr. Martin Brennan, who headed the evaluation team, gave evidence before the Tribunal between the 17th December, 2002 and the 13th February, 2003. He was questioned as to his knowledge of the Glackin Report. He indicated that he was aware of the events surrounding the Glackin Report, that he had not read it, but that he had been told by a colleague that it had made no findings adverse to the applicant. If he was aware that the report "… made negative findings which bore on the decision being taken" he said that he would have taken those findings into account in his capacity as leader of the evaluation team. Mr. Brennan was cross-examined by counsel for the applicant.

    12. Letter 11th day of February, 2003

    In a letter dated 11th February, 2003 Ms. Helen Rackard on behalf of the applicant wrote to the solicitor for the Tribunal complaining about the conduct of the proceedings of the Tribunal as evidenced by the cross-examination of Mr. Martin Brennan and objecting to such an "irrelevant and unfair line of examination …". Complaint was also made of the use of allegedly pejorative and objectionable language by counsel for the Tribunal in relation to the applicant. It was indicated that there was an intention to apply to the High Court if there was a repetition of the unfairness or procedural error.

    13. Letter 24th day of February, 2003

    On 14th day of February, 2003 Mr. John Loughrey, secretary of the Department, began his testimony. On 24th day of February, 2003 the solicitor for the Tribunal replied to the letter of 11th February, 2003. In the letter it was stated that during the course of Mr. Loughrey's evidence, which resumed the next day, further reference would be made by counsel to the Tribunal to the Glackin Report. It was pointed out that counsel for the applicant would have an opportunity to examine Mr. Loughrey in relation to the matter should he so wish. Further, that the applicant would have every opportunity to deal with this matter during the course of his evidence. It was pointed out that lines of examination pursued by the Tribunal with witnesses were entirely a matter for the Tribunal itself.

    14. Letter 28th day of February, 2003

    By letter dated 28th day of February, 2003 the solicitor for the applicant replied pointing out that the fax had arrived after 4.00 p.m. on the 24th February. Complaint was made of the Tribunal, specifically of the giving of less than twenty four hours notice of the fact that the Glackin Report was again to be referred to by counsel for the tribunal in the course of examining a witness. It was stated that it was extremely fortunate that the counsel for the applicant was available at such short notice as otherwise objection would have been made to the Tribunal covering matters that affected the applicant. It was accepted that the Tribunal had the right to determine the line of examination of witnesses provided it was done within the terms of reference.

    15. Mr. John Loughrey

    Mr. John Loughrey gave evidence to the Tribunal that at the time when the licence was awarded he had read the Glackin Report and knew of its criticisms. However, he felt that he was entitled to rely upon a written confirmation by a reputable accountancy firm Messrs. Farrell Grant Sparks that IIU was "in a position to make this investment and to make the underwriting commitment." He was aware that IIU was beneficially owned by the applicant. He had been informed that the Department was seeking legal advice as to the implications of a reconfiguration of the share interest in ESAT Digifone. Mr. Loughrey was cross-examined by counsel for the applicant and by legal representatives of other interested parties.

    16. Mr. Fintan Towey

    On the 7th May, 2003 evidence was given before the Tribunal by Mr. Fintan Towey, who was a member of the evaluation team. At the end of the day Mr. Towey was questioned briefly on the Glackin Report. Unfortunately there was a technical problem with the daily transcript and the final section of the transcript, relating to these questions on the Glackin Report, was not produced or sent to the solicitors for the applicant, among others. Thus, on considering the daily transcript no reference would appear to the final portion of the evidence of Mr. Towey referring to the Glackin Report. The Tribunal was not aware at the time of this technical problem. No evidence was given in the High Court as to whether the legal advisors of the applicant had in fact considered the daily transcript on the day in issue.

    On 8th May, 2003 when Mr. Towey continued giving evidence he said that he had not read the Glackin Report but had a general awareness of the report. Counsel for the Department objected to further questioning of Mr. Towey on the contents of the Glackin Report, on the grounds of relevance and speculation.

    17. Tribunal Ruling

    The Tribunal ruled:

    "I can't see how its speculation. He is reciting the finding of an authorised officer engaged by the Minister at the time, senior solicitor in this town and I have already held that whilst of course I am not going to embark on any possible findings in relation to this matter until all relevant evidence has been heard and until all persons have had an opportunity to make submissions. I would effectively be holding that this Tribunal is operating in cloud cuckoo land if I did not hear this portion of the evidence. I think it is unnecessary that Mr. Towey be pressed to advance a view on that, because it is self evident that the matters that do stand as a matter of record did make certain findings. We'll proceed on that basis"

    (Day 214, p. 11, 8th May, 2003).

    The Tribunal then proceeded, counsel for the Tribunal doing so on the basis of the existence of the Glackin Report as a matter of fact and of Mr. Towey's general awareness.

    18. References by Counsel

    As pointed out by the learned trial judge, on two occasions IIU was described during questioning by counsel as "this crowd IIU" and on one occasion it was described by a witness as "this outfit IIU." Counsel on behalf of the Tribunal referred to IIU as "Mr. Dermot Desmond's Outfit." In questioning witnesses, counsel on behalf of the Tribunal referred to the need to guard against the possibility of the licence "falling into undesirable hands …" He continued:

    "Q 186. Well if I could … and I am not suggesting that anyone here involved in this consortium falls within this category.

    A. Yeah.

    Q 187. But you couldn't have it falling into the hands of organised crime, for example?

    A. If that had arisen, I have no doubt that we would have."

    (Day 214, 8th May, 2003).

    The name of a Colombian drug dealer was mentioned. The Tribunal intervened to make it clear that this reference was not to be construed as having any implication or association with any persons having an interest in the Tribunal.

    19. Judicial Review

    The applicant sought judicial review in the High Court. The High Court characterised his complaint as twofold being (a) a claim that the Glackin Report and its contents are not relevant to the Tribunal, and (b) alternatively, if the Glackin Report is relevant, he claimed that the Tribunal has failed to provide fair procedures by not giving to the applicant any or any adequate notice of the likelihood that a witness would be examined with reference to the Glackin Report. It was submitted that in consequence he has been compromised in his capacity to vindicate his good name.

    20.i High Court – Relevance Issue

    On the issue of relevance the High Court held:

    "… the [Tribunal] was entitled to follow every line of inquiry which fell within the Tribunal's terms of reference until he had either discovered facts which gave rise to concern or alternatively established that the concern voiced was groundless.

    It seems to me that the applicant's former business transactions and dealings were and remain relevant to the question as to whether or not the applicant avoided the evaluation process and 'whether this was the result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry.'

    The Glackin Report comprised a report of an investigation into former business dealings of the applicant and transactions in which he was involved. It follows, from the foregoing, that it was and remains relevant to the work of the Tribunal. It does not seem unreasonable to me that the Tribunal might have an interest on the contents of that report. Neither does it seem unreasonable to me that the Tribunal might wish to enquire from members of the evaluation team as to whether or not the contents of the Glackin Report would, if known to the evaluation team, have had a bearing or influence upon the recommendation which they made to award the licence to ESAT Digifone.

    However, the opinion of the Court is not relevant to this issue. The court may not interfere with the exercise by the [Tribunal] of his discretion on substantive grounds unless satisfied … 'that it is beyond the range of responses open to a reasonable decision maker' … in the sense outlined in R. v. Ministry of Defence ex parte Smith … as adopted by Morris P. in Bailey v. Flood.

    In the instant case the Court may not interfere with the exercise by the [Tribunal] of his discretion to admit the Glackin Report in evidence or to permit the questioning of witnesses as to its contents unless the Court is satisfied that by so doing the [Tribunal] has interfered with the constitutionally guaranteed rights of the applicant in such an unreasonable and disproportionate manner as to require intervention. I am not so satisfied."

    20.ii High Court – Fair Procedures

    As to the procedures of the Tribunal, the High Court pointed out that it had not been suggested that any person or party having an interest in the work of the Tribunal had sought or received advance notification of the contents of the intended examination by counsel for the Tribunal of an intended witness. Reference was made to the exchange of letters, set out above. The High Court held:

    "The rules of natural and constitutional justice required that the respondent should provide fair procedures in equal measure to all of the persons or parties having an interest in the work and findings of the Tribunal. The applicant was not and is not entitled to preference over any such persons or party."

    The High Court concluded that provision of prior notice of the contents of oral examination of witnesses by counsel for the Tribunal had not been sought by parties, practically it almost certainly could not have been provided, and that the correspondence could not be considered as giving an undertaking that the Tribunal would provide the applicant with such notice.

    The High Court held that the Tribunal had not acted in breach of the principles of natural justice or fair procedures.

    20.iii High Court – References by Counsel

    As to the complaint that some references by counsel were pejorative to the applicant, the High Court made no findings as to the nature of the references. However, the High Court held that they did not constitute adequate grounds for the relief sought.

    21. Grounds of Appeal

    While many grounds of appeal were filed on behalf of the applicant, in essence they raised issues of relevance, fair procedures and the freedom of speech. It was also submitted that there were a number of factual errors.

    22. Submissions

    Counsel on behalf of the applicant and the Tribunal provided written submissions, which I have considered. Helpful oral submissions were made by counsel which I have also considered carefully.

    23. Decision

    I am satisfied that the High Court was correct in its determination. My reasons for this decision are as follows.

    23.i Decision – Relevance

    It is well established that the resolution of the Houses of the Oireachtas establishing the Tribunal enjoy the presumption of constitutionality: Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542 at p. 589. Similarly, the fundamental principles, enunciated in East Donegal Co-operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at p. 341 by Walsh J., apply.

    The Tribunal was established by the Dáil and Seanad to inquire urgently and to report on stated definite matters of urgent public importance. It was established by the representatives of the people. It is an instrument of importance in our democracy – an inquiry for the people into matters of public importance. It is not a court, even though it is chaired by a High Court judge, it is an inquiry.

    The terms of reference given to the Tribunal are wide ranging. This may be seen in the resolution of the Dáil and Seanad, the relevant portion of which is set out above. It is primarily for the Tribunal to interpret its terms of reference: Haughey v. Moriarty [1999] 3 I.R. 1. The interpretation was initiated in the opening statement by the Tribunal of this module, the relevant portion of which has also been set out above.

    While the powers vested in the Tribunal must be exercised within the constitutional framework, the very nature of the Tribunal is that it is fact finding, that is the reason for its establishment. Further, this fact finding should, where possible, proceed in public: Bailey v. Flood, Unreported, High Court, Morris P., 6th March, 2000. This inquiry is into the award of a licence and the details of the business transactions leading up to it, including the evaluation of the bidders. This is a complex arena of fact finding in which the Tribunal has already invested considerable time. Counsel stated that the Tribunal has already heard 100 days of evidence on this module as well as doing the preparatory work. This is not an appeal on the facts. In judicial review the court is not hearing an appeal. The court is reviewing the procedures.

    On the matter of relevance, the onus was on the applicant to make the case that the Tribunal acted ultra vires. I am satisfied that such a case has not been made out.

    The context of the module was set out by the Tribunal in the opening statement, which has been set out previously in this judgment. The Tribunal is inquiring as to what were the true facts of ESAT's financial position at and prior to the 16th May, 1996, as to how aware the Department were of those facts and, if they were not aware, whether that was due to any intervention by Mr. Michael Lowry or to some other factor. It is also inquiring as to what were the true facts concerning the identity of the Consortium, who were the true applicants, what were the true facts concerning the ownership of the ESAT Digifone Consortium, and what was the state of knowledge of the evaluators at relevant times.

    In the context of such an inquiry it is not unreasonable to determine that the former business transactions of the applicant are relevant to the inquiry as to whether the applicant avoided the evaluation process and as to whether this was the result of any influence by Mr. Michael Lowry. The Glackin Report is a report of an investigation into former business dealings of the applicant. It is a public document. It is not unreasonable to consider it relevant to the work of the Tribunal. The decision that this public document not be excluded is not a decision so unbalanced or unreasonable as to require intervention by a court. Further, the decision is not disproportionate in the context of the inquiry to the interests of the applicant. I would uphold the findings of the High Court on this aspect of the appeal.

    23.ii Decision – Fair Procedures

    The second ground of the case of the applicant, in essence, is that fair procedures have not been granted to the applicant by the Tribunal by counsel for the Tribunal referring to the Glackin Report when examining witnesses without notice or appropriate notice to the applicant. Thus the Glackin Report lies at the heart of this ground also. The Minister for Industry and Commerce published the Glackin Report in 1993. It received considerable coverage in the media. There is no court order limiting its publication. It is an important factor that the Glackin Report is such a public document and that it has been in the public domain for many years. It stands as a public document and the Tribunal is not re-investigating the matters which were at issue in the Glackin Report.

    I am satisfied that there is no necessity for the Tribunal to give notice to the applicant of any intended reference to the Glackin Report either in submissions or in the examination of witnesses. The Tribunal is entitled to refer to and permit references to the Glackin Report even though that Report included findings negative to the applicant and the applicant disputes those findings. In the circumstances the Tribunal is not required to inform the applicant when references will be made to the Glackin Report. In light of the nature of the Glackin Report, a public document, the Tribunal itself has not made a decision that so affects the rights of the applicant as to entitle him to notice in advance of such references.

    In all the circumstances, the Tribunal has not adopted procedures which prevent the applicant vindicating his rights. The learned High Court judge pointed out that the applicant has been granted legal representation at the Tribunal, that his legal advisors receive a daily transcript of the public proceedings of the Tribunal, that they enjoy the right to attend the Tribunal on his behalf at any time and to cross-examine witnesses. Further, if they are absent during particular testimony and alerted by reading the daily transcript they are entitled to cross-examine witnesses or to require that witnesses be recalled for the purpose of cross-examination. They may also make legal submissions in relation to testimony either during or after the completion of the testimony. This treatment of the applicant is similar to that by the Tribunal of others. Yet the applicant submitted that he was entitled to advance notice of references to the Glackin Report. Such an approach would be to give to the applicant an advantage not given to others appearing before the Tribunal.

    A court has a duty to provide equal treatment for citizens of the State: McMahon v. Leahy [1984] I.R. 525. Article 40.1 of the constitution requires that people who appear before the courts in essentially the same circumstances should be dealt with in essentially the same manner: The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642. Similarly, the Tribunal should apply rules of constitutional justice equally. There must be equal treatment of all persons. The people who appear before the Tribunal should be dealt with in essentially the same manner. Consequently, I am satisfied that the learned trial judge was correct to conclude that the applicant was not entitled to preference over other persons, and I would uphold that finding.

    23.iii Decision – Freedom of Speech

    The applicant raised the issue of protecting his good name. The right of the applicant to protect his good name and to obtain fair proceedings must be viewed in the context of the Tribunal, its establishment, its terms of reference, the exigencies of the common good which required the establishment of the Tribunal, and the right to freedom of expression. The right to privacy is not an absolute right: Redmond v. Flood [1999] 3 I.R. 79, at p. 88 Hamilton C.J.

    Where possible a Tribunal should conduct its proceedings in public. As Morris P. said in Bailey v. Flood, Unreported, High Court, 6th March, 2000:

    "It is clear that it is of fundamental importance that, where possible, the proceedings of a tribunal of inquiry should be conducted in public. The very reason for the establishment of such a tribunal is that urgent mattes causing grave public disquiet need to be investigated in order either to root out the wrongdoing or to expose the concerns as misplaced. If a tribunal is to accomplish its purpose on either count it is profoundly important that it be seen to conduct a thorough, methodical inquiry in which no special treatment is accorded to anyone and where matters are shielded from public scrutiny and criticism only where absolutely necessary, such as where to do otherwise would jeopardise the lives of individuals. The public concern and disquiet must be met either by establishing facts which give rise to the concern or disquiet or alternatively establish that the fears or cause for concern and disquiet were groundless."

    Thus, although the exceptional inquisitorial powers conferred upon the Tribunal may interfere with a person's constitutional right to privacy, the exigencies of the common good require that such matters of urgent public importance be inquired into in public and this may outweigh a particular person's constitutional right to privacy: Redmond v. Flood [1999] 3 I.R. 79.

    In this case the issues arise around a public document, the Glackin Report, where the information is already in the public domain. Thus, the applicant has an especially heavy burden to discharge to establish interference with a constitutional right to privacy, let alone a necessity to weigh that right against the exigencies of the common good.

    The Tribunal is an arena where free speech is of significant importance. The Tribunal was set up by the representatives of the people to inquire into matters of public importance. The inquiry is to find out relevant facts and determine whether there is reason for the disquiet or not. It is thus an arena where freedom of expression is an important tool in the public interest in our democracy. The Tribunal was the mode chosen by the public representatives to inquire into the stated matters, to track down wrongdoing if it exists, and to allay concerns if it does not.

    Thus in this inquiry freedom of speech has an important function as part of an open democracy. The importance of this function in our State, by reference to newspapers, has been recognised by the courts: Irish Times v. Ireland [1998] 1 I.R. 359; O'Brien v. Mirror Group Newspapers [2001] 1 I.R. 1; Kelly v. O'Neill [2000] 1 I.R. 354.

    This important function has also been recognised under Article 10 of the European Convention of Human Rights. In Tromso v. Norway (1999) 29 E.H.R.R. 12 the court considered whether interference with an applicant's right to freedom of expression was necessary in a democratic society. The test of "necessity in a democratic society" requires a court to determine whether the "interference" related to a "pressing social need", was proportionate and whether the reasons given by the national authorities to justify are sufficient and relevant. The national authorities have a margin of appreciation in determining this need. However, the final ruling is by the European Court. In so saying the court referred to the importance of the press in a democratic society and its important role in the imparting information on all matters of public interest. It stated:

    "In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of 'public watchdog' in imparting information of serious public concern."

    It determined, also:

    "Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it 'necessary', regard must be had to the public – interest aspect of the case."

    It held ultimately that the reasons relied upon by Norway were not sufficient to show that the interference complained of was necessary in a democratic society.

    However, in this case the issue arises in a public inquiry established by the public representatives of the people into matters of urgent public importance. The terms of reference set out the matters of public interest in the State, the democracy. The inquiry is "necessary to preserve the purity and integrity of our public life without which a successful democracy is impossible": Haughey v. Moriarty [1999] 3 I.R. 1 at p. 57. In this situation the right of freedom of expression of the Tribunal in the Tribunal is significant and it would be a heavy burden to discharge.

    However, the information in issue was already in a public document, the Glackin Report, which has been the subject of considerable media coverage over recent years. Thus the information was already in the public domain. I am satisfied that there was no interference with the constitutional right to privacy of the applicant, and the issue of weighing that right against the exigencies of the common good does not arise for consideration. However, if it did, the rights of the applicant are not such as to curb the public inquiry established by the representatives of the people from their use of the Glackin Report. To allow the applicant's right to his good name to prevail over freedom of speech in such a situation in the Tribunal on this issue would be wholly disproportionate.

    23.iv Decision – Factual Errors

    I am satisfied that any factual errors which may have arisen were not significant to the issues before the High Court and this court. Consequently there is no reason to interfere with the decision of the High Court on these grounds.

    23.v. Decision – References by Counsel

    The learned High Court judge made no finding as to the nature of the references by counsel to the applicant, however he held that they did not constitute adequate grounds for the relief sought. I would agree with and uphold that determination.

    However, I am concerned at some of the references made in the language of counsel for the Tribunal. This is a Tribunal established for the public benefit. It is to misunderstand the appropriate role of counsel for such references to be made during the inquiry. Representatives of the people have established the Tribunal, which is being conducted for the public benefit, by persons working for the public. The applicant is assisting the public inquiry. In conducting such an inquiry persons working for the public should adhere to a code of good manners in relation to the witnesses they are questioning.

    24. Conclusion

    I have dealt with this appeal in some detail. However, fundamentally it is a simple case, arising on a single issue, the Glackin Report. There is a certain air of shadow boxing in this case. To challenge references to a public document by the Tribunal was to assume an immense burden. For a court to exclude references to a public document by the Tribunal and its counsel in questions or submissions would be an extraordinary intrusion on the working of the Tribunal which I would envisage arising only in wholly extraordinary circumstances. Such circumstances do not arise in this case. If, on the other hand, the applicant wished to contest the Glackin Report that would be a matter for another arena. However that is not an issue for the Tribunal.

    On the facts of this case I am satisfied that the Tribunal is investigating the award of the licence within its terms of reference. It is not unreasonable to have introduced the Glackin Report into this module, it is not ultra vires the terms of reference. There was no necessity, under the requirement for fair procedures or by reason of any actions of the Tribunal, for the Tribunal to give to the applicant advance notice of the questioning of witnesses on the Glackin Report.

    For the reasons given in the judgment above I would dismiss the appeal and affirm the order of the High Court refusing the relief sought by the applicant.

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