Judgment delivered on the 29th day of July, 2005 by Denham J.
I agree with the judgment of Murray C.J., and with the order he proposes. This is an appeal by Jason Brady, the applicant/appellant, hereinafter referred to as the applicant, from the judgment and order of the High Court (Ó Caoimh J.) dated the 22nd day of July, 2003, in which the reliefs sought by the applicant were refused. District Judge Gerard Haughton, The Commissioner of An Garda Síochána and the Minister for Justice, Equality and Law Reform, the respondents, are referred to hereafter collectively as the respondents.
2. Preliminary Issue
The applicant was in custody and on Friday 23rd April, 2004 counsel for the applicant applied for a production order so that the applicant could be present at the hearing of his appeal on 27th April, 2004. Counsel for the respondents neither objected nor consented. The Court expressed the view that such applications place a strain on prison resources and security in the Four Courts. Counsel for the applicant submitted that the applicant had a right to attend because he could at any stage withdraw his instructions and seek to represent himself. In the absence of any argument to the contrary the Court made the production order but directed that the question as to whether the attendance of the applicant is necessary be tried as a preliminary issue.
At the hearing of this preliminary issue it was submitted on behalf of the applicant that he has a constitutional right to be present to see that justice is done in his own case and to ensure that he is represented properly.
First, it should be noted that this issue arises only in relation to persons in custody, people who have been deprived of their liberty by a court order. While limitations on liberty arise from such an order it should not automatically limit the right of access to court. Such a right should not be circumscribed only as a matter of the inconvenience and cost to the State, as the fundamental rights of an applicant have also to be considered, and a balanced decision achieved. In making a decision on that balance a variety of factors, depending on the circumstances of each case, require to be considered by a court. As to whether an applicant should be produced in court will depend on the type of hearing. Thus, for example, if the hearing is one of case management, a routine processing of the case, then, if the applicant is legally represented, it would only be in unusual circumstances that he would be required to be before the court. The situation may be different if the applicant is representing himself. On the otherhand, if the hearing is the trial of the action, then the applicant would have a right to be present, subject to exceptional circumstances. Hearings in court on issues between these two poles require to be determined by the Judge exercising judicial discretion with due regard to obtaining a constitutional balance between the fundamental rights of an applicant, the economic and security issues of the State, common sense, and all the circumstances of the case.
In due course the courts and applicants will be facilitated by video conferencing facilities. Applicants will be enabled to see and hear what is happening in court, and to consult lawyers, by utilising videoconferencing technology from a facility in prison. Pending the introduction of such technology the actual presence in court of a person in custody is an issue to be determined by a court on the facts of each case.
In this case, given that it was the trial of his action in the judicial review hearing, it is a case where prima facie the applicant has an entitlement to be present (either in the courtroom or by the use of videoconferencing technology) so that he may see and hear the proceedings and communicate with his legal advisers if he wished. There was no reason given as to why his prima facie right to be present in court should be denied in this case. Consequently, I am satisfied that it was correct to issue a production order.
3. Mutual Assistance and Co-Operation
During the 20th century the concepts of mutual assistance and co-operation between States were developed in Europe by the comity of nations in informal procedures between States, and by the European Convention on Mutual Assistance and Criminal Matters (Strasbourg, 1959) and the additional protocol on Mutual Assistance in Criminal Matters done at Strasbourg, 1978. Part VII of the Criminal Justice Act, 1994 established procedures in Ireland to enable the State implement such obligations. These steps taken in the last century are the precursors to the further development in the European Union of justice affairs, as efforts are made to facilitate access to justice and judicial co-operation, as well as the full employment of mutual recognition: The Hague Programme of the Council of the European Union, 2004. However, this case falls to be decided on Irish law, being the Criminal Justice Act, 1994.
4. Outline Facts of the case
In December, 2000 the applicant was arrested by members of the Gardaí Síochána in respect of matters unrelated to these proceedings and, while he was under arrest, the Gardai took possession of certain items of his property. By letter dated 20th December, 2001, a prosecuting authority in England requested assistance in enquiries relating to allegations of murder and associated offences of robbery. A further letter of 21st February, 2002 also addressed the matter. This request referred, in part, to property of the applicant, including the clothes he was wearing, and to photographs and finger prints.
On 5th March, 2002 the applicant served an application under the Police (Property) Act, 1897 seeking the return of his property. This application was returnable before the District Court on the 26th March, 2002.
On 14th March, 2002 Mr. James Clerkin, a civil servant in the Department of Justice, Equality and Law Reform, nominated, on behalf of the Minister, the first named respondent to receive the relevant material under the procedure established by s.51 of the Criminal Justice Act, 1994. On 25th March, 2002 the first named respondent heard the s.51 application, which included some oral evidence and submissions of counsel for the third named respondent, and ordered that property which had been requested (some of which was also referred to in the Police (Property) Act application) be transferred to the Minister, and that certain other matters which had not requested be furnished to the Minister.
On the 11th April, 2002, on the hearing of the application pursuant to the Police (Property) Act 1897, the President of the District Court ordered that the property the subject of the application be retained in the possession of the Gardai pending further order of the District Court.
5. Relief Sought
The applicant applied for leave to apply for judicial review, which application was granted on the 13th May 2002 by the High Court. The grounds for relief were amended later and the amended relief sought was as follows:
1. Leave to seek judicial review by way of certiorari quashing the order of the first named respondent made on the 25th day of March, 2002 concerning certain items of clothing the property of the applicant herein, photographs, fingerprints and confidential medical records, of the applicant.
2. An order by way of interim relief putting a stay on the transportation of the property pending the determination of the proceedings.
3. A declaration that section 51 of the Criminal Justice Act, 1994 is repugnant to the Constitution.
4. A declaration that in making the order under s.51 the first named respondent breached the applicant’s rights under Article 40 of the Constitution of Ireland.
5. A declaration that proceedings pursuant to Section 51 of the Criminal Justice Act are judicial proceedings and accordingly subject to the Constitutional imperatives and safeguards which inhere thereby.
6. A declaration that the seeking and procuring of the said order in the circumstances that obtained by the second and third named respondents, in so far as they acted in concert failed to respect the constitutional rights of the applicant.
6. Grounds for Relief
The grounds upon which such a relief was sought were:-
2. The Police Property Act 1897
The order and associated decisions and procedures were made in the absence of and without notice to the applicant. Since they had a profound effect on important interests and rights of the applicant, including constitutionally protected rights, this was in breach of fair procedures and of the applicant’s natural and constitutional rights.
The procedure adopted under s.51 operated to frustrate the applicant’s application under the Police Property Act, 1897 and in the circumstances amounted to an abuse of process.
3. The proceedings under s.51 were carried out in breach of the applicant’s rights:
(a) To private property;
(b) To privacy and bodily integrity;
(c) To trial in due course of law;
4. The provisions of s.51 provide for the alienation of the State’s criminal justice system to other States and are inconsistent with the Constitution.
(d) To notice of and the opportunity of legal representation in judicial proceedings;
(e) To fair procedures.
7. Grounds of Opposition
The grounds of opposition filed were as follows:-
1. The s.51 procedure is administrative and not judicial; it is in conformity with international principles as to mutual assistance in criminal matters as provided by the law of this State. The s.51 procedure was carried out in accordance therewith.
2. The various contentions of the applicant set out in the amended statement of grounds were denied, including that the first named respondent failed to act in a judicial manner.
3. The applicant was not entitled to notice of the s.51 application.
4. In making the impugned order, the first named respondent took into account the provisions of the Police Property Act, 1897.
5. The decision to proceed with the s.51 application was made in accordance with the principles of international comity and the second named respondent and third named respondent’s obligations thereunder.
8. The High Court
On the 22nd day of July, 2003 the High Court granted an order quashing the order made by the first named respondent on the 25th day of March, 2002, the application for a declaration that s.51 of the Criminal Justice Act, 1994 (hereinafter referred to as the Act of 1994) is repugnant to the Constitution was refused, and the transportation of property (the subject matter of these proceedings) out of the jurisdiction was stayed, pending this appeal.
The application of the applicant is grounded on an affidavit of the solicitor of the applicant. It stated that certain items of clothing of the plaintiff were seized and retained at Ballymun Garda Station when he was detained there in December, 2001, apparently in the context of a criminal investigation within the State. It was deposed by the solicitor of the applicant that he was instructed that the applicant had been in England prior to that date and returned voluntarily to Ireland in December, 2001.
The High Court Judge described the case made on behalf of the applicant as follows. The applicant was asked whether he agreed to give items of his clothing and other samples of forensic material, including a DNA sample, fingerprints, and a blood sample, together with permission for photographs to be taken, and he was asked whether he wished to speak to members of the West Midlands Police Force. It appears that the applicant had pleaded guilty in relation to an offence in the District Court and was remanded in custody to the 15th day of April, 2002, for sentencing. The learned High Court Judge stated that at that time the applicant indicated his intention of making a Police Property Act application in relation to his clothing, a written notice of application was served on the Garda Síochána at Ballymun on about the 5th March, 2002 and the application was listed for hearing on the 26th day of March, 2002. The High Court also stated that it appeared that the sister of the applicant and his brother-in-law were summoned to appear at District Court No. 50 on the 25th day of March, 2002 to answer questions concerning the applicant. Also, the High Court stated, on that day, the 25th day of March, 2002, an application was made before the first named respondent under s.51 of the Act of 1994.
The High Court concluded that the application under s.51, irrespective of the setting in which it was made, did not involve the administration of Justice, consequently it was not necessary for such application to be made before a court, and it was permissible to have the application made to a designated person.
The High Court was satisfied that the proceedings before the first named respondent did not require the giving of notice to the applicant and held that in the instant case the applicant did not need to be given notice or be heard by the first named respondent. Further, the court relied on s.51(15), which provides that the Minister is not empowered to nominate unless provision is made (by the law of the country requesting) that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.
As to the attendance of the suspect, the learned High Court Judge held:
“I am not disposed to hold that the attendance of the suspect or accused is ever required where the procedures of s.51 are being applied other than in relation to the taking of evidence from the suspect himself or herself.”
As to the taking of evidence of third parties he held:
“… I am satisfied that there was no authority vested in the District Court to issue a warrant or other process for securing the attendance of that witness. However, the power was vested in the nominated judge to secure the attendance by the issue of a summons or other process as in vested is the District Court.”
As to the Police Property Act application, the learned High Court Judge was satisfied that the existence of the application in question was not such as to deprive the Minister of the power to nominate a judge under s.51 (2) of the Act of 1994. In the circumstances he was satisfied that the applicant’s claim that the Act of 1994, and in particular s.51, was invalid having regard to the provisions of the Constitution must fail. Further, he held that the applicant had failed to establish any entitlement to the relief sought and the application was refused.
9. Submissions on behalf of the applicant
Before this Court counsel for the applicant opened the written submissions and made oral submissions stressing:-
(a) The terms of the request and its complexity;
(b) The confidential medical evidence;
(c) That the applicant’s constitutional right to medical assistance was not protected;
(d) That the applicant’s constitutional right to privacy was breached;
(e) The reservation of the Irish Government to the European Convention on Mutual Assistance in Criminal Matters;
(f) That the s.51 procedure amounted to a deliberate denial of the applicant’s constitutional right of access to the court – in particular with reference to his right to the Police Property Act application;
(g) The positive duty of the courts to vindicate the constitutional rights of a person in the face of an abuse of process.
It was submitted that the procedure under s.51 was the administration of justice. It was submitted, in the alternative, that administrative decisions which seriously affect rights require fair procedures and that this was such a decision. Further, it was submitted that the availability of the s.51 procedure for conduct which is not criminal under Irish law renders it repugnant to the Constitution.
10. Submissions on behalf of the respondents
Counsel on behalf of the second and third named respondents and the notice party submitted that the applicant’s case is limited to the grounds filed in the amended statement of grounds and the statement of opposition. Broader issues, it was submitted, than were argued in the High Court, may not be developed on the appeal.
It was submitted that the application order s.51 was not the administration of justice. Reliance was placed on Salinas de Gortari v. Smithwick (No. 2)  2 I.R. 553. It was submitted that where the requesting State seeks evidence for the purpose of an investigation the Act of 1994 does not require notice to be given. It was submitted that what was sought here was property for the purpose of a criminal investigation in the United Kingdom.
As to the medical reports, during the hearing of the appeal the position of the respondents altered. Ultimately the Court was informed that the medical reports would not now be transmitted to England. It was indicated that an undertaking would be given that he medical reports would not be sent to England.
In relation to the Police Property Act, 1897, it was submitted that the judgment of the High Court was correct. It was submitted that the Oireachtas has struck the appropriate balance and that the applicant had not made out that the legislation infringed the Constitution.
11. Mutual Assistance, the legal context
This case arises out of a request to the State from another State for mutual assistance, and the subsequent decision of the Minister for Justice, Equality and Law Reform to take steps to give assistance. Mutual assistance may be requested to assist in the investigation of a crime in another State, or it may be requested to assist in the obtaining of evidence for a trial in another jurisdiction.
12. Different types of legal systems
While the legal systems in Ireland and England are both Common Law, and the statutes by which the relevant Convention is invoked in each State are similar, certain problems may arise in giving mutual assistance in criminal matters between countries with differing legal systems. Indeed, the fact that most European States have a civil law system is reflected in the Convention and this may cause some problems in the future in the steps required to implement the law. However, in this case both the requesting and requested State have a common law system and the diversity which may exist in other situations is not present.
13. Letters of Request
A Letter of Request, dated 20th December 2001, from England, formally requested assistance under the provisions of the European Convention on Mutual Assistance in Criminal Matters (1959), in relation to a criminal investigation being conducted by officers of the West Midlands Police Force into the applicant. A summary of the circumstances under investigation was given as follows: on the afternoon of 10th December 2001, a student at EFF Technology Centre in Birmingham saw a person on the stairs of the building carrying a laptop, computer and haversack. The student recognised the items as his property, he argued with the man who was carrying them and who then ran out to the rear car park, having abandoned the property. The argument alerted two men who were working at the centre; they ran into the rear car park where they saw the offender get into a red toyota motor vehicle. Both men tried to extract the offender from the car. During the struggle the offender shouted “I’ll stab you, I’ll stab you” and his right shoe came off. The offender then got the car started and reversed causing both men to be thrown from the car. The car stopped and then was driven over the head and chest of one of the men, Charles William Tandy. A student ran over to the toyota motor car and told the driven he had hit someone. The driver ignored him and drove off. About nine students witnessed the incident. Mr. Tandy was taken to hospital where he died from his injuries. A suspect, Jason Thomas Brady, was identified. The allegation of murder is under investigation by the police authorities in England.
The Letter of Request stated, inter alia:-
“The police in England are anxious to obtain any evidence that can link JASON BRADY with the murder and other offences. The investigating officers in England would therefore ask that they be permitted to carry out the following enquiries in Ireland:
1. To invite Jason Thomas Brady, to be interviewed under caution, concerning his movements on Monday the 10th December and his involvement in the burglary, the murder of Mr. Tandy and wounding of Mr. Hillstead.
2. Further to interview Brady concerning his involvement in the theft of a red toyota motor vehicle R253 VVP (4DCJ) and its movements between its taking on the 23rd November and the time of the murder.
3. To arrange for Jason Brady to be medically examined for any injuries he may have sustained during the incident.
4. To request a current photograph of Mr. Brady
5. To request a current DNA sample of Mr. Brady.
6. To request a set of fingerprints from Mr. Brady.
7. To serve him with the appropriate documents under the Codes of Practice under the Police and Criminal Evidence Act 1984 in relation to identification procedures.
8. To seize all clothing attributable to Jason Brady and secure it in a manner which will allow a subsequent examination of the clothing by Forensic Scientists
9. That enquiries be made to establish any subscriber or registration details relating to any mobile telephone used by or seized from Jason Brady and obtained billing details relating to the usage of this mobile telephone for the period from the 23rd November 2001 to the 19th December 2001.
10. To make inquiries with and take statements from family members and associates of Jason Brady in Ireland as to his return date to Ireland and any other information relevant to this inquiry
11. To make inquiries and take statements in relation to any alibi that Jason Brady may provide during any interview under caution.
12. To obtain Warrants to search any addresses provided by Jason Brady in Dublin where it may be suggested he has resided during the period covered by this investigation.
13. To conduct any other inquiries and interview any other witnesses that are identified in or may become relevant or necessary in the course of the investigation and arising from any of the inquiries listed above.
In relation to the above enquiries paragraphs 1 to 6 it is accepted that Jason Brady may only be invited to co-operate in the procedures set out. It is also accepted and desired that he should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish Criminal jurisdictions insofar as they are applicable.”
A further letter was sent to Ireland dated 21st February, 2002. This gave up-to-date information on the enquiries into the murder in England. This included the information that the Police had sample DNA relating to Jason Thomas Brady and two sets of his fingerprints. Arising from the information the enquiries then indicated:
“The Nike “Tailwind” training shoe referred to in the summary of facts was found to show a mixed DNA profile. The profile was a mix relating to 3 separate persons, one an unidentified man, secondly, an unidentified female and the third has been identified as a match to the DNA held by the National DNA Database relating to Jason Thomas Brady.
A witness recalls that the driver of the toyota motor car R253 VVP vomited out of the driver’s window of the vehicle as it was driven away. Examination of vomit / spit recovered from the rear offside window and door of the toyota motor car has been identified through its DNA components as matching DNA held on the National Database relating to Jason Thomas Brady.
A book found inside the toyota motor car following its abandonment has a fingerprint, which has been identified as identical to that held on the Fingerprint Database and relating to Jason Thomas Brady. Additionally two further fingerprints identified to Jason Thomas Brady by the same means have been found on the outside of the driver’s window of the toyota motor car in an inverted position and consistent with what witnesses describe his doing in attempting to keep the car door closed as he drove away.
The grab handle on the inside passenger door of the toyota motor car shows a mixed DNA profile relating to 3 separate individuals. Again, one of those individual DNA profiles has been found to be a match to the DNA sample held in relation to Jason Thomas Brady. Witnesses describe the man in the toyota motor car as hanging on to the passenger side door grand handle in an attempt to prevent his removal from the vehicle prior to his driving it away and killing Mr. Tandy.”
Reference was made to the proposed procedure under s.51 of the Act of 1994 and the authorities were requested to utilize the procedure in relation to the items requested at 3,4,6,8 and 9 of the letter of request dated 20th December, 2001.
The letter continued:
“I thank the Gardai for making enquiries on our behalf with the occupants of the premises from which Mr. Brady was arrested. I note that those were his sister Natalie and his brother-in-law Anthony McDonnagh. I am obliged to you for pointing out the recent High Court finding relating to the lack of sanctions under the legislation in the event of the failure of a witness to answer question put to him or her but would however ask you to consider proceeding along the court route in relation to section 51 and Natalie and Anthony McDonnagh.”
14. Statutory Scheme
The statutory scheme providing for mutual assistance is to be found in the Act of 1994. Section 51 of the Act of 1994 provides:-
“51.-(1) This section shall have effect where the Minister receives-
(a) From a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or
(b) From any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
A request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
(2) If the Minister is satisfied-
(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b) That proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
He may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.
(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) (a) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.
(4) In this section ‘evidence’ includes documents and other articles.”
15. Mutual Assistance under the Convention
The Act of 1994 enables the obligations undertaken by the State in the European Convention on Mutual Assistance in Criminal Matters and the Protocol on Mutual Assistance to be fulfilled under domestic legislation. This Convention is, as stated in the Preamble, “to achieve greater unity among” members of the Council of Europe, in the belief that “the adoption of common rules in the field of mutual assistance in criminal matters will contribute to the attainment of this aim.” It is reasonable to construe this intention to the Oireachtas in incorporating the Convention within the domestic law of Ireland by the Act of 1994. This construction is supported by the words of the preamble which state “An Act …to make provision for international co-operation in respect of certain criminal law enforcement procedures…”. Consequently this legislation was enacted by the Oireachtas with the intention of establishing common rules to support the development of mutual assistance between the states. It should be construed accordingly.
16. Safeguards under the Act
The Convention provides for mutual assistance between different jurisdictions, which have different legal systems. The safeguards inherent in the system are as follows:
(i) The request must go to the Minister to be screened;
(ii) The request must come from a court or tribunal exercising criminal jurisdiction or a prosecuting authority or from an authority which appears to the Minister to have the required function;
(iii) The request for assistance must be in relation to, and must so specify, either a criminal proceedings which has been instituted, or a criminal investigation which is being carried out, in the requesting State;
(iv) The assistance relates only to the specific request;
(v) The Minister has to be satisfied: (a) that an offence under the law of the requesting country has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and (b) that proceedings have been instituted or that an investigation into that offence is being carried out;
(vi) The Minister has to nominate a Judge of the District Court to receive such evidence;
(vii) The said nominated person receives such of the relevant evidence to which the request relates as may appear to the nominated person to be appropriate for the purpose of giving effect to the request;
(viii) The procedure is subject to judicial review by the High Court, and, as here, an appeal to the Supreme Court.
17. Proceedings before nominated person
Section 51(6) provides that the Second Schedule to the Act shall have effect with respect to the proceedings before the nominated person. It states:
“Securing attending of witnesses
1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before the court.
2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.
Power to administer oaths
Privilege of witnesses
3. (1) a person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give-
(a) In criminal proceedings in the State, or
(b) Subject to subparagraph (2) of this paragraph, in criminal proceedings in the country or territory from which the request for the evidence has come.4. (1) the evidence received by the judge shall be furnished to the transmission to the court, tribunal or authority that made the request.
(2) Subparagraph (1) (b) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the court, tribunal or authority which made the request.
(3) Where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions of this paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court, tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it, upholds the claim.
(4) Without prejudice to subparagraph (1) of this paragraph, a personal shall not be compelled under this schedule to give any evidence if his doing so would be prejudicial to the security of the State; and a certificate signed by or on behalf of the Minister to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact.
(5) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this schedule to give any evidence in his capacity as an officer or servant of the State.
(6) In this paragraph references to giving evidence include references to answering any question and to producing any document or other article and the reference in subparagraph (3) of this paragraph to the transmission of evidence given by a person shall be construed accordingly.
(2) If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate, affidavit or other verifying document, the judge shall also furnish for transmission such document of that nature as may be specified in the notice nominating the judge.
(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.
5. For the avoidance of doubt it is hereby declared that the Bankers’ Books Evidence Act, 1879, applies to the proceedings as it applies to other proceedings before a court.
6. No order for costs shall be made in the proceedings.”
Section 51(1) of the Act of 1994 refers to a situation where the Minister receives a request for assistance “in obtaining evidence” in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on. Section 51(4) states that in this section “evidence” includes documents and other articles. Other than the inclusion of documents and other articles in the term “evidence”, it is not defined. The Act of 1994 and the Convention clearly anticipate assistance both in providing evidence for a trial and requests (preliminary to prosecution) relating to investigations.
The term ‘evidence’ in the Act of 1994 should be construed in context. I am satisfied that the term ‘evidence’ is to be distinguished from our law on evidence. The law of evidence determines how facts may be proved in a court of law. The law varies from jurisdiction to jurisdiction. If the term is used in relation to court proceedings then the relevant law is that of the state in which the proceedings are taking place. The “evidence” sought in this case is for an investigation. The term is used to cover “evidence” relevant to an investigation, as here, and so may be wider than “evidence” for a trial.
A similar analysis of the term ‘evidence’ in this context has been made elsewhere. In England and Wales a flexibility in the concept of evidence in this type of context has been accepted. The analysis arises in the context of a scheme for mutual assistance. It includes material which may not ultimately be evidence at a trial. This purposive approach is consistent with the Convention and Protocol. In considering this approach in R v. Secretary of State for the Home Department, ex p Fininvest Spa  1 W.L.R. 743 at p.752 Simon Brown LJ stated:
“… it was not until the Act of 1990 that a provision was made for obtaining evidence in connection with “a criminal investigation,” providing only, as section 4 makes plain, that the Home Secretary is satisfied both that an investigation into a particular offence is being carried on and that there are reasonable grounds for suspecting that it has been committed. Inevitably there is some flexibility in the whole concept of evidence; not even the applicants submit, for example, that what may be sought under the Act of 1990 must be “likely to be material evidence …” within the meaning of section 97(1) of the Magistrates’ Courts Act 1980 as explained in Reg. v. Reading Justices, Ex parte Berkshire County Council  1 Cr.App.R. 239. When, therefore, one is speaking of “evidence” in the context of a criminal investigation, the permissible area of search must inevitably be wider once that investigation is complete and the prosecution’s concern is rather to prove an already investigated and “instituted” offence.
The Criminal Justice (International Co-operation) Act 1990 in short created a wholly new scheme for mutual assistance with regard to criminal investigations, a scheme under which it would plainly be necessary to examine altogether more material than would ultimately constitute evidence at any trial. True, the word “evidence” continues to be used, but Parliament cannot thereby have intended to confine assistance within the relatively narrow limits prescribed by the Westinghouse case and in re State of Norway’s Application. That in effect would be to defeat the very change being brought about by the Act of 1990. The terms of article 1 of the 1959 Convention should in this regard be noted:
“(1) The contracting parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting party.”
In my judgment, that consideration of itself is sufficient to defeat the applicants’ central contentions here with regard to the width of disclosure sought in this case.”
I would adopt and apply this analysis of the word “evidence”. There needs to be a degree of flexibility in the concept of the term “evidence” under the Convention and our domestic legislation. While the cases of England and Wales are not binding authority for our analysis, as they are based also on the same Convention their approach, referring to the Convention, is of assistance. I am satisfied that the Oireachtas cannot have intended a narrow definition of the term “evidence”. I too note the words of Article 1 of the Convention and especially “the widest measure of mutual assistance …”
The request in this case has been made in relation to a criminal investigation being conducted in England, where certain allegations are under investigation. The police in England request that “enquiries” be made in Ireland: see Letter of Request, 20th December, 2001. The applicant has not been charged with any offence. No trial proceedings have been commenced. The request relates only to the investigatory stage of a criminal process. I am satisfied that it would not be appropriate to address in this case a hypothetical situation, where “evidence” would be sought for criminal proceedings; that is not this request. I leave over to an appropriate case, where evidence for criminal proceedings in a requesting state is in issue, considerations relevant to such a request.
In this case the Minister is specifically requested to assist in investigations. Should there be an issue of evidence at a trial in England at a later date then further steps would be required. There is nothing in the circumstances of this request which indicates that the fundamental rights of the applicant will be impinged in any way.
20. Minister satisfied to assist regarding certain items
The Minister was satisfied that an offence had been committed and that an investigation into that offence was being carried out. The Minister decided to utilize s.51 of the Act of 1994 to assist on items 3,4,6,8 and 9 referred to in the Letter of Request, 20th December, 2001. These were:
(a) To arrange for the applicant to be medically examined for any injuries he may have sustained during the incident;
(b) A current photograph of the applicant;
(c) A set of fingerprints of the applicant;
(d) All clothing of the applicant, secure so as to allow for subsequent forensic examination of the clothing by forensic scientists; and
(e) Any subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing details relating to usage of the mobile phone for the period from 23rd November 2001 to 19th December, 2001.
20.1 Items in issue
These are the matters originally sought and which were originally in issue on this appeal. However, as is referred to elsewhere in this judgment, the Minister withdrew (a), the medial evidence, from the proposed assistance and indicated that it would not be the object of any assistance to England. Thus at issue are the photograph, fingerprints, clothing and mobile phone details.
The Minister having originally formed the view that items 3,4,6,8 and 9 referred to in the Letter of Request could be proceeded with by way of application under s.51 of the Act of 1994, he so informed the Judicial Co-operation unit of the United Kingdom Central Authority in Criminal Matters, and, in accordance with s.51 (2) of the Act of 1994, the first named respondent was nominated “To receive such of the evidence to which the above request relates as may appear to the Judge to be appropriate” for giving effect to the request. In accordance with paragraphs 4(1) and (2) of the Second Schedule to the Act of 1994 it was requested that the evidence be furnished to the Department “for transmission to the U.K. Authorities.”
22. Section 51 Process
The first named respondent had legal authority under s.51 of the Act of 1994 to proceed, however, the process under s.51 of the Act of 1994 is limited. The nominated person may “receive such of the evidence to which the request relates”, s.51 (2) (b). It is not a wide ranging investigative role. The designated person is not an investigating judge. Within the terms of the request, and the items referred to, the delegated person, the first named respondent, is required to receive such of the evidence to which the request relates as may appear to him to be appropriate for the purpose of giving effect to the request. Thus the s.51 procedure is a statutory procedure, not a trial. It is a process consistent with international principles as to mutual assistance between States.
It is within this legal context that the request was received for mutual assistance. The one thing that is crystal clear in this case is that there has been considerable confusion. There was confusion during the hearing before the first named respondent. The hearing had the trappings of a court proceedings, yet it is not. The documents prior to and resulting from the hearing have the appearance of District Court documents, yet it is not a District Court hearing. Indeed, the general confusion continued even before this Court on certain matters, notably the medical evidence. This confusion has made the case appear more complex.
24. Court Trappings
The application pursuant to s.51 of the Act of 1994 proceeded with many of the trappings of a court hearing. This was erroneous. For example, the decision of the first named respondent had at the top left hand corner of the sheet of paper the following:
Court No. 50, Richmond Courthouse,
Mutual Assistance Application”.
Then set out were the words:
“The Prosecutor; The Director of Public Prosecutions at the suit of …” Underneath appear the words
“Accused; Jason Brady”.
In the body of the decision, all of which appears under a heading,
“Courts Act, 1971,
Certified Copy of Order”
It is stated:
“On the 25th day of March 2002 at the sitting of the Metropolitan District Court at District Court No. 50, Richmond Courthouse, North Brunswick Street, Dublin 7, before one of the Judges of the said District Court assigned to the said District an order was made to hand over all items in Police Property application other than rings and photo albums. Items to be transferred to investigating authorities including roll of film and fingerprints and photograph of Mr. Brady”
The process was held in a courtroom in a court building, yet it was not a court hearing. No explanation was given that it was not a court hearing. The documents incorrectly have the trappings of a court hearing. For example, a “Witness Summons” was headed “The District Court,” and the decision was headed “The District Court.” Evidence was given on oath, with no explanation that it was not a court hearing.
The whole process was such that it had the appearance of a District Court hearing, which was incorrect. A lay person, for example, a doctor, requested “to give evidence”, may well have assumed it was a court hearing. These problems may have arisen because of the complexity of fitting into a common law system a procedure more akin to a civil law system where, for example, there may be a judicial officer who investigates a crime. However, under our legal system this is a special statutory process established under s.51 of the Act of 1994.
The fundamental issue raised by the applicant is that he was not given notice of the application under s.51 of the Act of 1994. The Letter of Request stated that it was “accepted and desired” that the applicant should be given the opportunity of seeking legal advice from a lawyer who could advise him on the position in the English and Irish criminal jurisdictions. However, the issue of whether or not the applicant is entitled to notice of such an application must be determined under Irish Law, and irrespective of any such reference in the Letter of Request. The statement as to legal advice was made in the context of a request for assistance on thirteen matters, five only of which the Minister was satisfied to send to the nominated person, and one more of which was then excluded by the Minister on this appeal. Further, in relation to some of the inquires it was stated that it was accepted that the plaintiff could only be invited to co-operate.
As I have already pointed out, this request relates to the investigative stage of the criminal process, the initial stages of the criminal process. At this stage of the criminal process if enquiries were being made in Ireland the Garda Síochána would give no notice to the applicant of any assistance being given between different branches of the Garda Síochána. It is not common practice nor is it required under the Constitution that a party be given notice of ongoing Garda investigations.
Under the Convention it is proposed that mutual assistance be enabled between police authorities of the different States. While respecting the rights of the individual under investigation, it is anticipated that one police force will assist another. The type of assistance will depend on the circumstances of each case. There may be the formal procedure of extradition and the appropriate statutory procedure will be applied. There may be procedure under the European Arrest Warrant Act, 2003. Or, as here, there may be a request for mutual assistance by the provisions of documents. This type of request for assistance may also vary. Thus it may, as here, be at the initial stage of an inquiry, at the investigation stage, or it may be a request when criminal proceedings have been instituted. In each case a balance has to be achieved. This balance is achieved through safeguards, at several levels. I have set out previously the safeguards under the procedure of the Act of 1994.
I am satisfied that prima facie the applicant is not entitled to notice of a request for mutual assistance at the investigative stage of criminal proceedings. There may well be exceptions, but, in general, at the investigative stage of the criminal process, the Garda Síochána are not required to inform a suspect of on-going enquiries in Ireland, or elsewhere, and a similar approach applies to a request such as is in issue here.
On behalf of the applicant it was submitted that as a matter of principle that notice is required to be given of assistance such as is proposed in this case. I am satisfied that no such general principle exists. It was open to the applicant to prove exceptional circumstances which would require him to be given notice, but this was not done, nor would it appear relevant in this case. There are no exceptional circumstances such as to make the applicant an exception to the general rule.
Consequently I would dismiss the applicant’s appeal on this ground in relation to the photograph, the set of prints, and the clothing. The medical examination documents have already been excluded. The only remaining category is the mobile phone details.
The request was for subscriber or registration details relating to any mobile telephone used or seized from the applicant and billing details relating to usage of the mobile phone during the period 23rd November, 2001 to 19th December, 2001. Under the statute the first named respondent is required to receive the items of evidence to which the request relates. While he is given some discretion, to receive such of the evidence to which the request relates as may appear to our appropriate for the purpose of giving effect to the request, it is not a wide ranging investigative discretion. Indeed in all the circumstances of this pretrial situation, it is a discretion which should be exercised carefully and the statute construed strictly. Consequently, only the items requested should be received, or those “to give effect” to the request. In this case the mobile phone was included in the decision of the first named respondent. I am satisfied that this was in error, it was not sought and there was no evidence that it could “give effect” to the request. I agree with the determination of Murray C.J. that the mobile phone should not be included in the items provided on foot of the request.
Thus, subject to the medical reports and the mobile phone itself, I would dismiss the applicant’s appeal on this ground. The circumstances may be different if there is a request for evidence for the purpose of a trial in being in another jurisdiction. However, that is not the situation in this case. As such is an important issue I am satisfied that a decision on such a request should await legal argument in an appropriate case.
26. Administration of Justice
The applicant submitted that the hearing of the application pursuant to s.51 of the Act of 1994 is the administration of Justice. I am satisfied that the High Court was correct in determining that such a hearing was not the administration of justice and I would dismiss this ground of appeal.
The parameters of the administration of justice have been addressed by this Court in many cases. Criteria have been set out, see for example McDonald v. Bord na gCon  I.R. 217 at 230. In this case the circumstances are of an enquiry during police investigations. It is a preliminary investigation, part of the investigative stage of a criminal process, albeit in relation to a criminal process in another jurisdiction of a crime in another jurisdiction. It is a specific statutory form of procedure, it is not the administration of Justice. Consequently, I would dismiss the appeal of the applicant on this ground also.
27. Fair Procedures
Even though the designated person is not administering justice in hearing the s.51 application, fair procedures should be applied. The appropriate fair procedures depend on the type of hearing and the circumstances of the case. In general, fair procedures do not require a person to be informed of steps being taken by a member of the Garda Síochána who is investigating a crime. Thus, if the property in issue was being considered by a forensic authority in Ireland for the purpose of an investigation here, the applicant would not be given, or be entitled to be given, notice of the steps being taken during such an investigation. Of course, later he could query any such steps in a trial if such evidence is presented to the court. The difference is that in this case the evidence would be sent out of the State to another jurisdiction for an investigation in that State. Given the scheme of the Convention and domestic legislation, that alone is not sufficient to assist the applicant. The Convention and legislation clearly anticipates such actions.
No issue arose before this court as to the method by which the property came into the possession of the Gardaí. For the purpose of this case I am satisfied that the property is legally in the possession of the Gardaí.
In this context, fair procedures, the applicant submitted that he was entitled to notice. However, I am satisfied that it would be introducing something which is not on the face of the Convention or in the Irish legislation, to require, in every case, that notice be given, to the person being investigated, of the s.51 application. I am satisfied that in general the law does not require notice to be given of a s.51 application, to the person being investigated. The issue then is whether notice should be given in exceptional circumstances, and whether there are exceptional circumstances in this case. The circumstances thus fall to be considered by the Court on this review.
In this case, where the decision on the request for mutual assistance relates to photographs, fingerprints, clothing and mobile phone details, I am satisfied that there is no requirement to give to the applicant notice of the s.51 application. The fact that errors were made, confusion reigned, and court trappings were added to an earlier stage, do not govern the decision on the law on this appeal. Such issues may well be relevant to consequential orders, such as costs.
28. Medical Records
The medical evidence requested was that the applicant be medically examined for any injuries he may have sustained during the incident under investigation. Clearly, this request related to the time proximate to the incident.
However, there was confusion in response to this request. First, on the documents, with their court trappings, it would be reasonable for a doctor to have assumed that he was giving evidence in court. The nature of the application was not explained to him. The issue as to the duty of the doctor to his patient in such an application was not analysed or a decision made. The privilege of the patient in general or specifically under s.51 (6) was not addressed adequately either.
In this case there was a request initially for medical records. In general, the designated person may receive such of the evidence to which the request relates as may appear to him to be appropriate for the purpose of giving effect to the request. First, the designated person should address that which is requested. Then, within the ambit of the terms of the request, he may receive that which appears appropriate to give effect to the request. The procedure does not provide a general fishing expedition for the requesting State. Nor is it a fishing expedition for the designated person. He is not an investigating judge. He is limited to the terms of the request, which includes the precise terms appropriate to give effect to the request.
There was great confusion in this case in relation to the seeking of medical records. The information sought and given before the designated person was wider than the request, and even wider than to give effect to the request. Importantly, from the wording on the documents, it could reasonably have appeared to have been a court sitting and it was not explained to the doctor that it was not a court sitting. This aspect of the application before the designated person was addressed incorrectly. However, that is not now in issue on this appeal.
Members of this Court raised concerns during the hearing of the appeal on this aspect of the case. After the break for lunch counsel for the Minister informed the Court that he was instructed that the Minister had decided that he would not transmit the medical records of the applicant, neither the evidence of the doctor nor the records, to England. I am satisfied to consider this as an undertaking to the Court.
Therefore the issues arising on this matter as to the extent of the jurisdiction, the specific doctor/patient relationship, and the law on mutual assistance, are moot. As this aspect of the initial case raises important issues I consider that they should await a case where the facts may be determined and the law fully tested in the trial court before the issue is considered on appeal.
Undertakings are routinely given in proceedings before the courts. In this case an undertaking in relation to the medical evidence (that the evidence would not leave the State) was given on behalf of the Minister.
The Minister has a key role, including under s.51 of the Act of 1994, by which the State implements Ireland’s obligations under the comity of nations and international conventions. In such circumstances, where issues relating to persons and their constitutional rights may be relevant factors, it may be appropriate in certain cases for undertaking to be given to a court as to the evidence in issue.
Undertakings may be given in proceedings relating to applications such as has arisen in this case. No inherent difficulties arise in this case on the issue of undertakings. A potential concern may need to be specifically addressed in a future case if an undertaking is sought or given by persons in another jurisdiction. However, this is not in issue here. Should it arise in the future I am of the opinion that it is not an insurmountable problem. Undertakings are given in other types of actions in relation to proceedings in other jurisdictions. See, for example, the jurisprudence which has developed in Ireland and England on undertakings in proceedings arising on the cases on the abduction of children across State borders.
31. Constitutional Rights
The applicant has constitutional rights which may not be abrogated. His rights of access to the Courts, privacy, etc., are extant. In the circumstances of this case his position is not such as to require intervention on his behalf by the Court.
32. Police (Property) Act 1897
Counsel for the applicant submitted and stressed that the applicant had sought to make his application under the Police (Property) Act 1897 prior to the authorities moving the s.51 application. The facts of this case establish that it was coincidental that the s.51 application (which had commenced months earlier as seen in correspondence cited previously) came to court just prior to the application of the applicant under the Police (Property) Act, 1897.
Nothing in the Police (Property) Act 1897 gives to the applicant a right to his property in circumstances where there is a criminal investigation in being. Property lawfully obtained by the Garda Síochána, as in this case, may be retained for a criminal investigation. This is a clear matter of public policy. I am satisfied that the proceedings under the Act of 1994 were not brought to frustrate the application under the Police Property Act. Consequently the applicant has not established any basis to succeed and I would uphold the decision of the High Court and refuse his appeal on this ground.
33. Constitutionality of the Act
The High Court held that the applicant’s claim that the Act of 1994, and in particular s.51, is invalid having regard to the provisions of the Constitution must fail. On this appeal it was submitted that s. 51 of the Act of 1994 is repugnant to the Constitution as it allows the procurement, under apparent compulsion, of evidence which could not otherwise be procured without a court order or a judicial determination and may allow orders to be made adversely affecting a citizen’s constitutional rights without any requirement of prior notice to him despite the absence of exceptional circumstances.
For the reasons given I am satisfied that the delegated person, the first named respondent in this case, is not administering justice. Further, in this case there was no breech of fair procedures by the absence of notice of the applicant. The Act of 1994 relates to mutual assistance in criminal matters between States. Such mutual assistance may arise in many different circumstances. In this case the Letter of Request relates to enquiries at the investigative stage of the criminal process.
The approach to the analysis of the constitutionality of an Act is well established. First, there is the presumption of constitutionality of the Act of 1994. Secondly, there is a burden on the applicant to establish the repugnancy of the Statute. Thirdly, any repugnancy must be established clearly.
This statute brings into domestic law the obligations undertaken by the State in the Convention on Mutual Assistance in Criminal Matters, and while the applicant has a constitutional right to submit that such legislation is unconstitutional, any such unconstitutionality should be established clearly. Fourthly, if there is more than one construction of the legislation reasonably open, then it must be presumed that the Oireachtas intended the constitutional construction. Fifthly, there being no express words excluding notice to the applicant (a major issue in the submissions) it may be assumed that in appropriate cases a court would require notice to be given. As stated in East Donegal Co Operative Ltd v. Attorney General  IR 317:
“An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a Constitutional Construction to one which would be unconstitutional where they both appear to be open, but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt.”
In this case the Act of 1994 is presumed constitutional. The ground raised by the applicant for its invalidity is that of a requirement for notice to be given to him. For the reasons given, I am satisfied that notice was not required in relation to the request for mutual assistance in the police enquiries. I leave over for another case the issue of whether notice would be required when evidence is sought for production at a trial in another jurisdiction.
The Act is silent as to the issue of notice. The investigation in this case is not the administration of justice, and, as I have held earlier, the applicant is not entitled to notice. No other ground being advanced this aspect of the appeal fails also.
This case relates to a request for limited purposes, a request for assistance in a criminal investigation. The Minister gave his consent to the transfer of items for this purpose only. There is no question of the evidence as such being used in a trial. I would affirm the judgment of the High Court, subject to the variation as to the mobile phone, and the undertakings on the medical evidence.
I agree with the order proposed by Murray C.J. I would allow the appeal insofar as to grant a declaration that the Minister is not entitled to transmit to the police authorities in England the mobile phone. I would accept the undertakings given by counsel on behalf of the Minister as to the medical records. I would disallow the other grounds of appeal.
THE SUPREME COURT
JASON BRADY Applicant/Appellant
DISTRICT JUDGE GERARD HAUGHTON and THE COMMISSIONER OF AN GARDA SIOCHANA and THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM
and Notice Party
THE ATTORNEY GENERAL
JUDGMENT of Mrs Justice McGuinness delivered the 29th day of July, 2005
I have had the advantage of reading the judgments both of the Chief Justice and of Mr Justice Hardiman in draft. I am in agreement with the order proposed by the Chief Justice and I am also in agreement with him that the issue concerning the applicant's medical records does not require the making of any order in the light of the undertakings given by counsel on behalf of the third named respondent. I am, however, also in agreement with the analysis by Mr Justice Hardiman of the factual and procedural issues which arose in this case and in agreement with him in believing that in the particular circumstances of this case it is not entirely clear that the evidence sought was for purely investigative purposes. I propose here to add a few very brief remarks.
I have no doubt of the value and importance of the system of international mutual assistance in criminal matters established under the European Convention ratified by this country in 1996 and brought into effect through sections 51 to 55 of the Criminal Justice Act, 1994. This scheme of mutual assistance is set out through detailed provisions, and with careful limitations, both in the Convention and in the relevant sections of the 1994 Act.
The procedure is a somewhat unfamiliar one, involving as it does the role of a Judge of the District Court not as a judge, but as "persona designata". It involves, as agreed by my learned colleagues, the obtaining and transferring of precisely the items of evidence included in the request. It is accepted by all parties that the procedure is not the administration of justice and the persona designata does not possess inherent powers or discretion to enlarge or extend the items of evidence transferred. It would therefore be anticipated that the authorities charged with bringing this somewhat unfamiliar procedure into effect would have taken particular care to adhere closely to the terms both of the Convention and of the Act. This does not appear to have been the case.
In his judgment the learned Chief Justice remarks that it would seem that the Department responsible for the operation of the section did not give any prior consideration as to how it might be operated in practice and that the indications were that the section had been implied without prior reflection as to precisely what was entailed, how the persons called upon to act should carry out their functions and the precise parameters of the procedures to be followed. I am in entire agreement with these remarks as, indeed, I am with the particular criticisms of the procedure employed in this case set out by Mr Justice Hardiman in his judgment. At an earlier point in his judgment the Chief Justice emphasised the need to approach the interpretation of the relevant sections from a perspective broader than the circumstances of an individual case. It is precisely because this is so that I am here laying stress on the fact that many of the difficulties in the present case arose from the failure to apply correctly the procedures laid down in the statute and in the Convention. It is greatly to be hoped that these difficulties will not recur in future cases.
In this context, it is also difficult to understand why the authorities in this jurisdiction failed to take notice of the expressed wish of the United Kingdom authorities as set out in their letter of request that the applicant "should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise on the position in both English and Irish criminal jurisdictions insofar as they are applicable". This expressed wish cannot, of course, be binding on any or all of the respondents. It is, however, carefully worded and it seems likely to be of significance. It appears that for some unexplained reason this request was never even considered by the Irish authorities from beginning to end of the procedure. This too greatly contributed to the difficulties which arose in the case.
I share the view of Mr Justice Hardiman in doubting that the evidence to be collected and transferred in this particular case was necessarily only for the purposes of an investigation and in this aspect of the case I respectfully disagree with the Chief Justice. I do so for two main reasons. In the first place, in common with both my learned colleagues I do not find it credible that the statement concerning the necessity for a proper chain of evidence made by counsel for the third named respondent at the hearing before the first named respondent was, as this court was informed, a "mistake".
Counsel at the hearing stated that his concern was "to ensure the chain of evidence" and specifically stated that "some of this evidence may form part of the prosecution evidence in the United Kingdom - in order to ensure the integrity of the chain - that the documentation on the items transferred are given in some sense directly to the English authorities". This court was given no explanation of the nature of this alleged mistake or how it arose. At the hearing before the first named respondent it was made clear that the counsel concerned was acting on the direct instructions of his solicitor and so presumably of his client. It appears to me that at that stage both counsel and solicitor were acting in good faith on their instructions. The most likely conclusion from this is that the required evidence was not sought solely for investigative purposes. This conclusion becomes clearer, it seems to me, if one remembers that at that stage of the proceedings there was still the possibility that oral evidence from the applicant's relatives might be obtained and transmitted.
In the second place it seems to me that the most likely explanation of the request made by the United Kingdom authorities that the applicant should be given the opportunity of seeking legal advice is that those authorities had in mind the provisions of section 3(8) of the Criminal Justice (International Cooperation) Act, 1990, the United Kingdom legislation in force at the time of the requests, which, as pointed out by Mr Justice Hardiman, is virtually exactly similar to the wording of section 52(10) of the Criminal Justice Act, 1994.
Section 52(10) provides:
"In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the exercise of the court's discretion to exclude evidence otherwise admissible the court shall have regard—
(a) to whether it was possible to challenge the statement by questioning the person who made it, and
(b) if the statement was taken in proceedings in the country or territory in question, to whether the law of that country or territory allowed the parties to the proceedings to be legally represented when the evidence was being taken".
It is, I consider, at least a reasonable possibility that in making the request referred to above concerning the applicant, the United Kingdom authorities had in mind using the transmitted material as evidence in a future trial of the applicant. It is in this context that I consider that the applicant should have been put on notice of the hearing before the first named respondent and, indeed, to have been offered the opportunity of legal advice as suggested.
This is not to say that I consider that notice of this kind needs to be given in all or even the majority of cases where the collection and transmission of evidence is requested by the prosecution authorities of another country. In very many cases it will be clear that the evidence sought is for investigative purposes only; in other cases matters such as urgency or the fear of flight may arise. It is in the particular circumstances of this case, and in addition in a situation where it seems clear that the applicant is a definite suspect, that it seems to me that notice was required. This was especially so in regard to the proposed transfer of medical evidence or records and the proposed evidence of the applicant's relatives.
As matters transpired the present situation is that neither the medical records nor any statement of evidence by the applicant's relatives are to be transmitted to the United Kingdom authorities. As far as the remaining items are concerned I am, therefore, happy to concur with the order proposed by the Chief Justice.
- 16 -
THE SUPREME COURT
Murray C.J. 282/03
DISTRICT JUDGE GERARD HAUGHTON
THE COMMISSIONER OF AN GARDA SÍOCHÁNA
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of July, 2005.
I have read the judgment of the Chief Justice and I agree that the appeal should be disposed of in the manner he proposes. I have prepared a judgment of my own firstly because the case illustrates certain issues, some of quite a fundamental nature, which may arise again on an application of this nature. Secondly, certain factual and procedural aspects of the present case seem to me to require specific notice. Thirdly, I take a different view from some of my colleagues on a particular point – the purpose of the evidence gathering exercise described below. While subsequent events may have rendered this irrelevant, I think it important enough to require me to address it.
This is the applicant/appellant’s appeal from the judgment and order of Ó Caoimh J., delivered the 22nd July, 2003. By this order
Ó Caoimh J. quashed an order purportedly made by the first-named respondent on the 25th March, 2002, refused a declaration that s.51 of the Criminal Justice Act, 1994 is repugnant to the Constitution and refused the other relief sought by the applicant, including reliefs restraining the transmission to the third-named respondent, for onward transmission to the United Kingdom authorities, of certain items and records.
The factual and procedural background.
It appears that on the 24th December, 2001 the Department of Justice received a letter of request dated the 21st December, 2001 from the Crown Prosecution Service, West Midlands, Birmingham, England. This was a request pursuant to the provisions of the European Convention on Mutual Assistance in Criminal matters (1959). By Article 1 thereof it is provided that:-
Article 3 provides:-
“The contracting parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in relation to offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting party”.
Sections 51-55 of the Criminal Justice Act, 1994 relate to the taking of evidence in the State for use outside the State and the making of requests by the State. The term “evidence” is defined to include documents and other articles.
“The requested party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting party for the purpose of procuring evidence or transmitting article to be produced in evidence, records or documents”.
The request. The letter of request was not produced in full in these proceedings: the material under the heading “Assistance required” was blanked out. Despite this, the letter is a very detailed one. It describes an episode on the 10th December, 2001, in a college in Birmingham. A student saw a person carrying property, including a lap top computer, which was his. The person with the property ran away when challenged by its owner. Two staff members saw a person getting into a motor car and tried to stop him getting away. The escaping person threatened them and there was a struggle in which he lost a shoe. However he started the vehicle, got away from the men, and then drove it forward striking one of them. This unfortunate man died about an hour later.
The driver of the vehicle was physically described and was noted as being in his early twenties with an Irish accent.
Apart from the portion which is blanked out, the letter of request asked that the applicant be interviewed under caution about the incident described and about his connection with the vehicle; that he be medically examined for any injuries; that a photograph of him be supplied; that a DNA sample be supplied; that fingerprints be supplied; that “all clothing attributable” to him be seized and secured; that details of any mobile phone used by or in the possession of the applicant, together with billing details for a specified period be established; that his family and associates be interviewed with a view to establishing what date he returned to Ireland and any other relevant matters, as well as other inquiries.
The letter of request also had the following text:-
On the evidence, no step was at any time taken to comply with the desire expressed in this paragraph.
“In relation to the above inquiries paragraphs 1-6 it is accepted that Jason Brady may only be invited to cooperate in the procedure set out. It is also accepted and desired that he should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions in so far as they are applicable”.
Steps taken on foot of this request. The applicant’s solicitor says without contradiction that on the 25th January, 2002 his client was being taken in custody by prison officers from Circuit Court No. 8 to Circuit Court No. 29. He was chained to them. He was approached by a Detective Garda from Ballymun Garda Station who did not caution the applicant or ask him if he had legal advice in relation to the matter of the request, or if he was legally represented, but challenged him and demanded samples for forensic analysis in connection with his alleged involvement in an offence in England. He asked the applicant to agree to give items of his clothing, a blood sample, DNA sample, fingerprints and photographs. He also asked him if he would agree to speak to members of the West Midland’s Police Force. The applicant said he would not. The solicitor also says that the applicant had been arrested on the 19th December, 2002 on foot of 24 extant warrants at his sister’s residence in Tallaght. The applicant says that at the time of his arrest clothing and other property were seized from him by gardaí who said that they were required in connection with the investigation of a burglary offence in Ireland. On the 28th January, 2002 the applicant gave notice of an application under the Property Act, 1897 in relation to this property and obtained a return date of the 26th March, 2002 in the Dublin District Court for the hearing of this application.
It is clear from the affidavits that there was further correspondence between the Department of Justice and the Crown Prosecution Service, but this is not exhibited. However, on the 21st February, 2002 the Crown Prosecution Service, West Midlands, made a further request. Again, this letter is not exhibited in its full original form. From what is exhibited, however, it is clear that the Crown Prosecution Service had been told that the Irish authorities were “proposing to set up a hearing under s.51 of the Criminal Justice Act, 1994”. It is not clear from which side this proposal emanated. The CPS asked that that procedure be used in relation to the items requested at particular reference numbers of the earlier request. They also asked that the applicant’s sister and brother-in-law be summoned to court to answer questions about when the applicant returned to Ireland and certain other matters.
The Section 51 Hearing. The hearing under s.51 was arranged for the 25th March, 2002 before the first-named respondent. It is common case that no attempt was made by the authorities to put the applicant on notice of this. However, witness summonses were served on Dr. Noel Browne, a medical officer attached to Clover Hill prison and on Nathalie and Anthony McDonagh. All summonses are in common form, varying only in relation to the name of the person summoned and the matters on which they were to be questioned, or the items which they were to bring. Dr. Browne was ordered to “attend at the sitting before a judge of the District Court to be held at Court 50, Richmond Hospital, North Brunswick Street, Dublin 7 on the 25th March, 2002 at 2pm and on any day to which the hearing of these proceedings shall be adjourned to give evidence (which includes documents and other article) in connection with the aforesaid criminal proceedings, in relation to the following matters:
(a) All medical examinations carried out by you upon Jason Thomas Brady.
(1) All notes or memoranda of medical consultations held by you with Mr. Jason Thomas Brady,
And you are required to bring with you the following documents and other articles in respect of the above account.
(2) All statements and records to include reports prepared by you for and on behalf of Jason Thomas Brady”.
The applicant’s sister and brother-in-law were summoned to address the following questions:-
“(a) On what date in December, 2001 did Jason Brady return to Ireland,
(b) How did Jason Brady return to Ireland at the afore-mentioned time?
(c) Where and when did you meet Jason Brady on his return to Ireland and did he inform you of the reason for his return?
(d) Did Jason Brady discuss with you the events of the 10th December, 2001 at BEF Technology Centre, Birmingham in the United Kingdom?”.
These witness summonses are all dated the 19th March, 2002. It will be observed that the return date of these summonses was the day before that fixed for the hearing of the applicant’s police property application.
It appears from the transcript of the hearing of 25th March, 2002 that a witness was also examined in relation to the accused’s mobile phone records, but this person’s name is illegible on the transcript.
Order made after the hearing of the 25th March.
The applicant’s grounding affidavit exhibits an order purportedly made by the first-named respondent on the 25th March, 2002. This is headed “Courts Act 1971, Section 14” and beneath that “Certified copy of Order”. The order which then follows is entitled “Prosecutor: The Director of Public Prosecutions at the suit of ”. This blank is unfilled. On the next line, “Accused: Jason Brady.” The curial portion of the order is as follows:-
The second and third-named respondent, through their counsel, stated that they were unaware that this order had been drawn up. They apparently made no objection to it being quashed and certainly did not appeal against its quashing.
“Hand over all items in police property application other than rings and photo albums. Items to be transferred to investigating authorities including roll of film and fingerprints and photograph of Mr. Brady”.
However, it appears to be common case that the items the subject of the police property application, perhaps with the exception of the rings and photo albums, remain in the custody of the second or third-named respondents.
Dr. Browne attended in answer to the summons served on him. A transcript of his examination was exhibited in these proceedings. The third-named respondent was represented by counsel who outlined the request. Dr. Browne was sworn and said that he had the original medical records of the applicant in his possession, but no copy. He was asked to provide a copy “for the next date” and agreed to do so. Counsel for the Minister then asked to inspect the medical records and they were handed to him. Dr. Browne confirmed that they were all the medical records of the applicant he ever had. He also said that he had a photograph of the applicant but he did not wish to produce it because “We generally don’t allow those photographs outside afterwards. We keep them especially for maintenance programmes, we do a lot of methadone maintenance programmes”. Counsel then asked for a direction from the first-named respondent that the photograph “be photocopied for the purpose of transmission” and the first-named respondent made that direction. The doctor was then asked to explain the nature of the medical records to which he did, giving details of certain medical conditions of the applicant in the course of his evidence. These details, or some of them, were of a personal nature and were of a sort to which, in the ordinary course of medical practice, confidentiality would attach.
A Garda Kevin Daly also gave evidence and described receiving a request from the English police. He referred to certain items which were the subject matter of the police property application and said that these were voluntarily given to the Gardaí by the applicant, rather than seized. He also gave evidence of being given a mobile phone by the applicant.
Garda Quinn also said that he had received notification of the application under the Police Property Act “at the start of February”. He told the first-named respondent that it was listed for the following day, 26th March, 2002. He said that the application “names the majority but not all of the properties taken by us. Some of the property from the holdall bags. Some of the clothing he wore at the time of arrest and his rings and mobile phone”.
It may be noted that although the guard was aware of the pending police property application since a date very early in February, 2002, the deponent from the Department of Justice swore that he did not become aware of this application until the 19th March, 2002.
Other features of the hearing before the first Respondent.
Certain other features of the hearing before the first respondent are of significance. Counsel on behalf of the third-named respondent opened both the request and the relevant law. He also referred to the Police Property Act. The first-named respondent made an order in respect of the mobile phone itself, even though that had not featured in the request. Although the respondents have denied any knowledge of the order that was subsequently drawn up, the transcript reveals that the first-named respondent said:-
He then went on to discuss the question of the rings and rejected a submission on behalf of the third-named respondent to the effect that the rings constituted “clothing”.
“Alright. I’ll make an order for all of the items referred to in the police property application other than the photograph albums”.
After this, counsel on behalf of the third-named respondent said he wished to raise something that was concerning his solicitor. He then said:-
The significance of this, obviously, is that it is a clear indication that the evidence taken and the items the subject of the order would or might form part of the evidence against the applicant in a trial in the United Kingdom. In the course of the hearing of this appeal, however, it was stated that counsel’s statement to that effect was a “mistake”. The nature of this mistake, how it came to be made, when it was discovered, and what the true position was in relation to the items and information to which the hearing related was not explained to this Court. Accepting, on the faith of senior counsel’s statement that it was indeed a mistake, the position nevertheless remains that the view of the solicitor and counsel representing the third-named respondent at the hearing before the first-named respondent was that the relevant material might form part of the prosecution evidence against the appellant in England and, therefore, that it was necessary “to ensure the chain of evidence”. It was not, therefore, required solely for investigative purposes.
“… I appreciate the concern. I think, Judge, you will. It is that in order to ensure the chain of evidence, and some of this evidence may form part of the prosecution evidence in the United Kingdom – in order to ensure the integrity of the chain – that the documentation on the items transferred are given in some sense directly to the English authorities…”.
Another feature worth noting is that the first-named respondent enquired whether there was a solicitor acting for the applicant in the police property application. The guard said that there was not a solicitor acting in relation to that application, that it appeared to be a personal application. He did however say that a named solicitor had acted for him “on the criminal aspects”. However, in the affidavit of the applicant’s solicitor he said that his firm was instructed, in January 2002, to seek the return of the clothing which had been taken from him.
The hearing just described took place pursuant to s.51 of the Criminal Justice Act, 1994. This provides:-
|Taking of evidence in State for use outside State.|
51.—(1) This section shall have effect where the Minister receives—
a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
( a ) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or
( b ) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
(2) If the Minister is satisfied—
he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.
( a ) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
( b ) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) ( a ) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.
(4) In this section "evidence" includes documents and other articles.
(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority therof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.
(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section.
The second schedule referred to provides, in part:
1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that Court.
2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.
The schedule further provides, in part:
4. (1) The evidence received by the judge shall be furnished to the Minister for transmission to the court, tribunal or authority that made the request.
Knowledge of the applicant.
No attempt was made to notify the applicant of the hearing pursuant to s.51 and accordingly there was no question of his being able to take legal advice in relation to it. He did however become aware that some proceeding was in being because he was informed by his sister of the service of the summonses on her and on his brother-in-law. He spoke to his sister by phone and offered the opinion that as far as he knew she and her husband did not have to answer any questions of the sort indicated. He also asked his solicitor to secure representation for his sister and brother-in-law. They called to the applicant’s solicitor office on the morning of the hearing. The solicitor considered that there appeared to be a potential conflict of interest in his representing them. The solicitor also made enquiries and discovered that there was no application listed at 10.30am on the 25th March, 2002. In fact, the witness summonses to the sister and her husband inaccurately required their attendance on “the 25th March, 2000” at 10.30am”. In any event, these parties did not attend at the hearing.
The applicant said that when he heard of the service of summonses on his sister and brother-in-law he formed the view that they were suspected of harbouring him while unlawfully at large.
In the course of the hearing of the appeal, there was considerable discussion about the medical records. The point was made that the request did not extend to the medical records and that the records in question, which were the totality of the records available to Dr. Browne, clearly related to matters which could have no possible evidential significance, and were prima facie confidential. In fact, the interest of the English authorities in the medical condition of the applicant was limited to the question of whether he had any injury when seen by the prison doctor in Dublin, and presumably arose on the basis that they were keen to know whether he had any injury consistent with the struggle which had taken place in Birmingham. A number of points were agitated before us as to the status of the first-named respondent’s order in relation to the medical records and as to how such status might impact on the question of whether the hearing under s.51 was or was not a judicial hearing. Counsel for the respondents asked to be allowed to address this question after the luncheon adjournment. At that time he stated that the authorities would not seek to transmit the medical records to the United Kingdom.
It further transpired that when the applicant’s police property application came on for hearing before the President of the District Court on the 26th March, 2002, the Court was made aware of the events of the previous day. The President made an order, on the application of counsel for the applicant that the items the subject of the application be retained in garda custody pending further order of the District Court.
Potential use of the relevant material.
We have already seen that, at the hearing before the first-named respondent, counsel for the third-named respondent envisaged at least the possibility that the material to which the application related might form part of the evidence against the applicant in a trial in England. The attitude of counsel for the second and third-named respondent to this area of the case was a very nuanced and, it may be, an internally contradictory one. He said with emphasis that the statement quoted above was a mistake: the uninformative nature of his indication to this effect has already been noted. Counsel also objected, with at least equal vehemence, to any submission based on the proposition that the material in question would or might form part of the prosecution evidence in the United Kingdom, or that it was possible, as a matter of English law, that this might happen. English law, he said, was a matter of fact for the purposes of a hearing before our courts and would require to be established in evidence by an expert.
In my view it is asking a great deal of the Court on the one hand to accept, without being provided with any details, that the unambiguous statement of counsel for the first-named respondent was a mistake, and on the other to decline to consider at all even whether it is possible that the relevant material might be used in evidence in the United Kingdom. It is only fair to point out that, if mistake there were, it was not the mistake of the solicitor or counsel engaged on behalf of the authorities before the first-named respondent. Counsel merely mentioned, on direct instructions, his solicitor’s concern that the order of the first-named respondent be such as would preserve the chain of evidence for possible use in a prosecution in the United Kingdom. It is impossible to see why the solicitor would have raised that concern, other than on the basis that his then instructions were that regard should be had to preserving the chain of evidence for a possible trial in the United Kingdom. Of course those instructions may have been given in error: those instructing him might have misapprehended the purpose of one or other of the letters of request, or there might have been a breakdown in communication with the English Crown Prosecutions Service. But nothing of the sort has been established in evidence, or made the subject of submissions.
Equally, this Court is well used to the consideration of English authorities and English statutes. Indeed, the principal authority relied upon by the respondent on the hearing of this appeal was R. v. Secretary of State for the Home Department, ex parte Fininvest SpA  1 WLR 743, a decision of the English Court of Appeal in relation to “a wide ranging series of challenges directed at the implementation by the United Kingdom authorities of an Italian letter of request”.
In these circumstances, I do not consider that it would be either fair or realistic to fail to address the alleged potential for the material gathered as a result of the s.51 hearing, or the material sought to be gathered by oral examination of the applicant’s sister and brother-in-law, to be used in evidence in the United Kingdom. Certainly, it would not be possible for this Court to decide authoritatively whether or not such material could be used. But it is perfectly reasonable and indeed essential in the interest of justice to address whether there was an intention to produce the relevant material in usable form, thus allowing for its potential use. I do not believe that the second and third-named respondents can, so to speak, have it both ways by dismissing the statement made on their behalf before the first-named respondent as a mistake of unexplained causation, while refraining from making any statement as to what the true position is, and submitting that the applicant’s failure to produce expert English evidence debars him from raising the question. It should be remembered that the applicant was not put on notice of the proceedings before the first-named respondent, was not (contrary to the terms of the first letter of request) permitted to take legal advice on the question of the request from the United Kingdom Authorities and indeed has never been told precisely what was afoot between those authorities and the second and third-named respondents here, in so far as it concerned him.
Legal aspects of the Convention regime.
It will first be noted that the obligation which this State has assumed under the Convention is an obligation to execute any letters rogatory “in the manner provided for by [Irish] law” (Article 3). The relevant statute law is the Act of 1994. It will be seen, in s.51, that a hearing under that Section is to be conducted by a judge of the District Court nominated by the Minister and who has the duty “to receive such of the evidence to which the request relates as may appear to the Judge to be appropriate for the purpose of giving effect to the request”.
It does not appear to me that a judge of the District Court discharging this duty, is sitting as such judge. No doubt he is bound to act judicially but his status as a judge seems to me to be merely a condition of eligibility for nomination. Counsel for the authorities submitted that the first-named respondent was sitting not as a judge but merely as a persona designata. I agree with this.
Secondly it appears to me that the persona designata is limited to the statutory function of receiving “such of the evidence to which the request relates as may appear… to be appropriate for the purpose of giving effect to the request”.
This in turn has the consequence that the evidential material received cannot extend to material which is outside the scope of the request. This is of relevance here because, for example, both the medical records and the mobile phone appear to be entirely outside any possible reading of the terms of the request. The submission on behalf of the third-named respondent, fortunately irrelevant in the event, that rings constituted “clothing” needs no comment here.
Looking further at the Act of 1994 one sees that s.52 makes provision for the obtaining of evidence outside the State for use in the State. Subsection (6) provides:-
Subsection (7) provides:-
“Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (3)(b) of this Section be used for any purpose other than specified in the letter: and when any document or other articles obtained pursuant to a letter of request is no longer required for that purpose… it shall be returned to such authority…”.
Subsection (10) provides:-
“A statement of evidence of a witness taken in compliance with the letter of request, and certified by or on behalf of the Court Tribunal or authority by which it was taken to be a true and accurate statement of the evidence so taken shall be admissible in the proceedings concerned as evidence of any facts stated therein of which evidence would be admissible in those proceedings”.
Position in the United Kingdom.
“In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the exercise of the Court’s discretion to exclude evidence otherwise admissible, the Court shall have regard – paragraph (a) to whether it was possible to challenge the statement by questioning the person who made it, and paragraph (b) if the statement was taken in the country or territory in question, to whether the law of that country or territory allowed the parties to proceedings to be legally represented when the evidence was being taken”.
The artificiality of certain of the submissions made on behalf of the authorities is in my view demonstrated by a consideration of the Criminal Justice (International Co-operation) Act, 1990, the relevant United Kingdom legislation at the time of the requests. Section 3(7) is in terms absolutely identical to s.52(6) of the Irish Statute, apart from the number of the subsection quoted. Section 3(8) is in terms substantially identical to s.52(10) of the Irish Statute. The variations are the United Kingdom Courts’ discretion to exclude evidence is described by reference to a statutory power – s.25 of the Criminal Justice Act, 1988. This could not be done in this jurisdiction because there is no such statute. In subparagraph (b) of the English subsection the Court is required to consider “whether the local law allowed the parties to proceedings to be legally represented when the evidence was taken” as opposed to the Irish subparagraph which requires the Court to have regard to “whether the law of that country or territory allowed the parties to the proceedings to be legally represented when the evidence was being taken”.
Having regard to this enormous similarity in the substance of the statutory provision and its phraseology, to the common law heritage shared by Great Britain and Ireland; to our mutual adherence to the European Convention on Human Rights, to the fact that the Irish draftsman plainly had regard to the English Act and to the fact that we are daily invited to consider English judgments, as we were by the respondents in the present case, it is in my view reasonable to conclude, unless the possibility is specifically negatived in a letter of request, that evidence gathered on foot of a request from the United Kingdom may be used in evidence in criminal proceedings in that jurisdiction. The evidence which may be open to being used in this way includes the recorded version of oral testimony, documents, and items of real evidence.
The artificiality of the Authorities’ position is further underlined by the fact that in Fininvest, cited above, upon which their submissions were in part based, the English Statute of 1990 is thoroughly discussed and extracts from it set out. It would clearly be an exercise in futility to bring this foreign authority to our attention if it was not felt that the Court, without the assistance of expert evidence (for neither party adduced any) could sufficiently construe the U.K. statute to make sense of the findings on which these respondents seek to rely. The Authorities are perfectly correct in that expectation. For the same reasons, and to the same extent, I feel quite able to look to the English statute on admissibility of evidence gathered under a letter of request: not authoritatively to construe it, but to form a view of what may occur under it of relevance to the Irish proceedings impugned in this action.
The artificiality of these respondents’ stance on the inability of the Court to consider the English regime is further illustrated by the contents of the supplemental affidavit of Mr. James Clerkin, an Assistant Principal Officer of the Department of Justice sworn in this matter on the 29th April, 2002. There is no suggestion that Mr. Clerkin is an English qualified lawyer or an expert of any kind. Nevertheless he purports at paragraphs 11, 12, to state that the Act of 1994 “incorporates into Irish law the provisions of the European Convention on mutual assistance in criminal matters… and to other International Conventions…”. He then says that Ireland is bound by the International Conventions to execute requests for assistance to the fullest possible extent. He goes on to express the view “… That it (sic) both Irish and United Kingdom jurisdictions included in their legislation incorporating international mutual assistance provisions that Articles gathered in such request can only be used for the purpose specified…”.
Apart from the imbalance, in light of the opinion on matters of law proffered on a layman’s affidavit, of contending that the Court and the applicant are inhibited from considering foreign law in the absence of expert evidence, but that the respondents may offer an opinion on it, it appears from these passages of Mr. Clerkin’s affidavit that it is the respondents case that both the Irish and the United Kingdom statutes incorporate into law for their respective territories the International Conventions referred to. This view of the Irish and United Kingdom legislation, coupled with the marked similarity of phraseology in the relevant sections, in my view emphasise just how unreal it would be to pay no attention to the United Kingdom statute. We must, of course, avoid anything which purports to be an authoritative construction of it.
Significance of the request and Section 51 proceedings.
It appears to me that the fact that so much and such intense argument was directed to a submission that the Court should pay no attention to the possible use in the United Kingdom of the material to which the s.51 application related is in itself significant. Having surveyed that legislation, and in particular the relevant subsections corresponding to the Irish s.52, it is possible to make certain further observations. If it is legitimate to proceed with an application under s.51 without making a person in the position of the applicant aware of that fact, then obviously such a person cannot “challenge the statement by questioning the person who made it” to quote s.3(8)(a) of the United Kingdom Act and s.52(10)(a) of our Act, which are in identical terms.
Equally, it would seem to follow that the “local law” did not allow the applicant to be legally represented when the evidence was being taken since, as he was not put on notice of the application, he naturally could not obtain legal representation at it, or take advice on it.
It will be further noted that an English court, like an Irish court, is obliged merely to have regard to these matters: in neither country does the statute require the exclusion of evidence in the circumstances noted. Of course, it may be of the greatest relevance in a particular case that both the United Kingdom and Ireland are signatories to the European Convention on Human Rights which provides at Article 6(3)(d):-
The evidence proposed to be taken.
“(3) Everyone charged with a criminal offence has following minimum rights…
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
Judging from the witness summonses, and leaving out of account for the moment the items of real evidence, it appears that it was desired to examine the doctor, a man from a mobile telephone company, and the sister and brother-in-law of the accused, as to his movements and the other matters indicated.
It is most important to note that no suggestion was made in the High Court or in this Court that it would have been impossible, or counter productive, to put the applicant on notice of the fact that it was proposed to examine these witnesses about the topic mentioned on the witness summonses. He was in custody. The witnesses themselves were given about one week’s notice of the matters on which they were intended to be examined: it follows that there was no extreme urgency which made notification of the applicant impossible. In the case of each witness there existed the possibility at least that his testimony might be sought to be admitted in evidence in the United Kingdom: no court in this country can form a proper view on how likely or otherwise it is that the testimony would in fact be admitted.
Having looked at the English statutes it appears that the “desire” of the English authorities that the applicant “should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions in so far as they are applicable” may be in part attributable to the matters to which the English court must have regard where a question of admissibility arises. It would, of course, be unfair to conclude that this desire may not also be attributable to a simple wish, very creditable in a public authority, to vindicate the applicant’s human rights. But the relevance of the passage for present purposes is that if the applicant were to be permitted to take legal advice about both Irish and English criminal law, he would of course have to be told what was afoot. The English authorities clearly had no objection to this, and in fact wished it to be done. Their request was ignored.
In my view the submission of the authorities on this aspect, too, is a highly artificial one. It was submitted that the desire to have the applicant permitted to take legal advice expressed by the English authorities must be viewed as applying only to the first request (which did not envisage an application under s.51) and not the second one, which did. This is plainly a fatuous distinction. On the first request the applicant was being asked only to make voluntary disclosures or to permit, voluntarily, the taking of evidential material. Between that date and the U.K. authority’s letter of the 21st February, 2002, it appears that the Irish authorities (with or without requests) decided to proceed by way of s.51. Under these provisions efforts were to be made to establish his movements, any conversations he may have had with certain persons, his telephone records, and to get his medical records from Dr. Browne.
In my view, in principle, the taking of such evidence in the circumstances envisaged in the Statute is in my opinion sufficient to constitute the applicant as “… a party, because his conduct has become the subject matter of the Committee’s inquiry or examination by reason of the charges which have been levelled against him”, to quote the phrase of Ó Dálaigh C.J. in Re Haughey  IR 217 at 263. In my view there is a sufficient analogy with the circumstances of that case to allow the phrase quoted, with the necessary incidental amendments, to apply. One need only read the produced portion of the two letters of request to see the grave suspicion to which the applicant was subject. His conduct, inter alia, had indeed become the subject of the first-named Respondents’ inquiry or examination by reason of those suspicions.
The foregoing, in my view, represents the position in principle. I am far from holding that, if circumstances of urgency, reasonably apprehended destruction of evidence or intimidation of witnesses required it, evidence might not be taken without notification. After all, evidential material is frequently taken without notification in the execution of a warrant. But that is done in the confidence that, in the event of the seized material becoming evidentially significant, its admissibility will be decided by our courts on known principles which respect the constitutional rights of the accused. Equally, the law provides examples of the seizure of materials for evidential purposes on notice to the person holding them: see Haughey v. Moriarity  3 IR 1. In that case, orders in the nature of discovery orders had been issued against a number of individuals’ bankers without notice to them. Hamilton C.J. said:-
I believe that this passage, in principle, applies to the present case as well. It is manifest and indeed now conceded that valid submissions could have been made, apart from anything else, relating to the scope of the orders. There is no possible mandate in law for the transmission of the entire medical records, nor were they requested by the English authorities. Equally there is no mandate in law for the transmission of the mobile phone, which equally was not requested by the English authorities. These items were ordered to be delivered in what can only be described as a burst of excessive enthusiasm. In the case of the medical records, this action in my view constituted an unwarrantable breach of the applicant’s entitlement to privacy in his dealings with the doctor who treated him, with no corresponding benefit either in the investigation of crime or otherwise. It did not even have the colour of a request by the authorities in another country.
“Fair procedures require that before making such orders, particularly orders in the nature of the orders made in this case, the person or persons likely to be affected thereby should be given notice by the tribunal of its intention to make such order, and should have been afforded the opportunity prior to the making of such order, of making representations with regard thereto. Such representations could conceivably involve the submission to the tribunal that the said orders were not necessary for the purpose of the functions of the tribunal, that they were too wide and extensive having regard to the terms of reference of the tribunal and any other relevant matters.
… The Court is satisfied that the trial judge was correct in his findings that the order sought to be impugned herein made by the tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by the tribunal in the making of such orders.
… There may be exceptional circumstances, such as the legitimate fear of destruction if prior notice was given, where the requirements of fair procedures in this regard may be dispensed with. No such circumstances exist in this case”.
Nature of proceedings.
In making the comment in the preceding paragraph I intend no criticism of Dr. Browne. This gentleman, like the other witnesses, was summoned to a hearing, in a court room described as such, by a judge of the District Court, and before “a judge of the District Court”. He was then asked for the medical records by a barrister acting as such and instructed by the Chief State Solicitor before a person who was a judge of the District Court who did not intervene in the process. He was therefore entitled, in my view, to assume that the records were required for some lawful purpose and that his parting with them was judicially sanctioned.
In my view the nature of the proceedings envisaged by s.51 render it necessary that any person, and especially a person invited to breach his obligations of confidentiality to another, be informed that, appearances to the contrary, he is not before a court and that the person presiding is not doing so as a judge, or with the authority of a judge. If this were explained to a medical practitioner asked, in the absence of his patient’s consent, to disclose the latter’s records the probable result is that he would wish to take the advice of his professional body which would almost certainly lead to his taking legal advice. In the present case, even a superficial legal scrutiny would have led to his being alerted to the fact that the letter of request did not extend to a request for a totality of the medical records. Apart from any other point that might be urged against disclosure, there was in my view no power whatever in the persona designata to mandate the handing over of these records, outside the terms of the letter of request.
Criticism of proceedings.
The applicant strongly contends that he was entitled to notice of proceedings in which (according to the facts as they were at the time of the issue of the witness summonses) a doctor who had treated him, a man who could give evidence about the use of a mobile phone linked to him, and his brother and sister-in-law who, or so the authorities hoped, could give evidence about his movements were to be examined in circumstances where the contents of their examination might become evidence against him abroad. He also contends that he was entitled to such notice before the first-named respondent sent to the third-named respondent for the purpose of transmission outside the country items of real evidence which were his property. He says that the failure to give him such notice was in effect a denial of his right to take legal advice or to be legally represented. He relies on the fact that the English authorities, in making their request, asked that he be permitted to take advice. Certainly, this is irrefutable evidence that they saw no practical reason why he should not be put on notice. The applicant also claims that the arranging of the s.51 hearing for the day before the police property application, at which he was the moving party and would certainly have been present or represented, was an attempt to interfere with his access to the Courts in relation to the real property in question and to circumvent the power of the District Court in favour of that a district judge sitting as persona designata (according to the authorities) with a very circumscribed discretion.
Response to criticisms.
The respondents’ say, first of all, that the proceedings under s.51 before the first-named respondent were not conducted by him sitting as a judge. I have already indicated that I agree with this. They go on to say such proceedings are in aid of a criminal investigation in another country, and there is no question of the applicant requiring to be put on notice of them, much less to be permitted to take legal advice. Indeed, it is said it would be positively counterproductive if this were the case:-
As noted above, it was vehemently and repeatedly insisted upon by the respondents that it is quite impossible for the Court to consider any suggestion that evidence gathered pursuant to s.51 may be used as part of the evidence against the applicant in the United Kingdom. The indication to the contrary in the course of the hearing before the first-named respondent is dismissed as a mistake and the absence of expert evidence on the prospect of using the material in evidence in a prosecution in the United Kingdom is said to be fatal.
“It is not the law that a murder investigation, either here or abroad, must run the risk of being compromised by a claim of breach of privacy. If a suspect must be involved in the information gathering aspect of a murder investigation, as claimed by the appellant in these proceedings, the bringing to justice of such suspect must be rendered considerably less likely”.
I would first of all reject two of the submissions made, one on each side.
I am not satisfied, on the evidence, that there is any support for the view that the proceedings under s.51 were meant to forestall or frustrate the applicant’s police property application. I fully accept that it is coincidental in a high degree that a return date for the former was sought the day before the date fixed, about six or seven weeks previously, for hearing of the latter application. It is also remarkable that the relevant member of An Garda Síochána was aware of the date fixed for the police property application for about six weeks whereas the gentleman in charge of proceedings in the Department of Justice remained in ignorance of this for most of that time. But the affidavits filed on behalf of the respondents disclaim any such intention and give an explanation which, though relying on a high degree of coincidence, is by no means impossible. In those circumstances it seems to me that if the applicant wished to take this aspect of the matter any further he should have done so by way of
cross-examination of the deponents: it is not a matter that can be resolved by the exchange of affidavits. This being so, and in view of the onus of proof resting on the applicant, I would not grant him relief on this basis.
I now turn to the question of whether the intended or possible use in evidence of the oral written or real evidence solicited under s.51 is a matter which may be considered by the Court. I have already said that I regard the respondents’ contentions in this matter as highly artificial. The fact is that an unambiguous statement in relation to the prospect of their being used in evidence was made by counsel on behalf of the third-named respondent. This was not done on his own initiative but on instructions. What counsel said is recorded in a transcript which the respondents have produced. It is not possible, in my view, to dismiss this indication as “a mistake” in the totally uninformative manner chronicled above. The respondents seek to go further: having got counsel’s indication out of the way, they hope, in the manner described, they proceed on the basis that there is no evidence as to what the use or potential use of the relevant material may be, because, they say, the applicant has failed to produce any.
I would firmly reject that submission. The indication counsel was instructed to give was in fact given and that fact cannot be airbrushed from the records of this case. Accordingly it is unnecessary to demonstrate from the English Statutes that the possibility of evidential use of the material exists. I would, however, strongly reject the view that we are not entitled, in the circumstances of this case, to have regard to the English statute. I would refer specifically, once again, to the fact that the respondents have relied before us on a judgment of the English Court of Appeal which sets out other parts of the Statute.
I have already set out towards the beginning of this judgment the fundamental provision of the Convention to which Ireland has subscribed. I wish here to recall only the first phrase:-
The reference to Irish law naturally includes the Act of 1994, much cited above, but also the Constitution and the substantial jurisprudence arising from it. No doubt it may be regarded also, since the Human Rights Act, 2002 and to the extent there provided for, as including the European Convention on Human Rights. I do not propose to address this in any detail, however, since I believe that the rights which it protects, in so far as they bear on this case, are at least as amply protected in the Constitution.
“The requested party shall execute in the manner provided for by its law any letters rogarty relating to a criminal matter…”.
Certain relevant facts. Before considering the manner in which, to comply with Irish law, this particular request must be met, I wish to recapitulate certain relevant facts. A significant part of the respondents’ case, exemplified in the citation from their written submissions above, is to posit an extreme position and suggest that the procedures necessary in those circumstances are applicable in the present case. This method of argument from a hypothetical extreme case to a perfectly ordinary one is gravely unsound as I said in my judgment in Sinnott v. Minister for Education  2 IR 545 at 709:-
I therefore repeat that, in the present case, the authorities of the requesting State actually expressed the desire that the applicant:-
“In my view, it is neither logically sound nor desirable to ground an argument by hypothesising an altogether extreme situation which admittedly has no applicability to the facts of the instant case, and to contend that the powers necessarily available to deal with so acute an emergency are therefore equally available to deal with an altogether different situation”.
It is most important to stress that all of the difficulties which have beset the respondents in this case have arisen because, for reasons never explained, they declined to comply with this request of the English authorities.
“… should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions so far as they are applicable”.
Manifestly, it would be impossible to give the applicant any meaningful opportunity of taking legal advice, whether in terms of English or Irish law, without telling him what was going on.
The fact that the requesting authorities made this additional request in relation to legal advice shows quite clearly that they saw no reason why the applicant should not be permitted to take legal advice, and therefore put on notice of what was happening. On the contrary, they saw good reason to suggest that he should be permitted to take such advice. As mentioned above, this may be because they feared for the admissibility of the evidence gathered if he did not have this opportunity, or because they simply wished to accord him his civil and human rights, or some combination of these reasons.
I am far from holding that there would never be circumstances in which it might be necessary to proceed to take certain evidence, oral documentary or real, without notice to a person in the applicant’s position because of a risk of destruction of evidence or other drastic consequences. But that is plainly not the case in this instance. It is a logical fallacy to think, because there may be such a case, that the procedure necessary to deal with it is therefore applicable to another case where the circumstances are quite different.
This is not new law: Haughey v. Moriarty, cited above, also related to a body, in that case a Tribunal, which was not engaged in the administration of justice. But it was obliged to follow fair procedures, which plainly the first-named respondent was also. Although it was, by statute, furnished with all the powers of the High Court in relation to the gathering of evidence nonetheless:-
The rest of the relevant portion of the judgment of Hamilton C.J., coupled with the provision he made for dealing with exceptional circumstances such as a fear of destruction of evidence, has already been cited above.
“Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this case, the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order, and should have been afforded the opportunity prior to making of such order or making representations with regard thereto”.
In my view the facts of the present case are such that the requirements of fair procedures outlined in the passage just quoted apply a fortiori. The material being gathered for the purpose of the Moriarty Tribunal would, after all, be remaining in this country. Its introduction into evidence would be at the discretion of the Tribunal, which was subject to control by judicial review by the High Court and by this Court. In the present instance the evidence, including the transcripts of oral evidence may be sent out of the country and thus out of the control of those Courts. It cannot be said that that situation is one in which the applicant is less deserving of the protection of fair procedures than were those in Haughey.
Equally, I do not think that the fact that in the middle of the appeal hearing the authorities for the first time prescinded from their intention sending the medical records out of the jurisdiction necessarily affects the result of this case. The medical records were wholly outside the scope of the request and should not be in the possession of anyone other than the applicant or his doctor. That the authorities, more than two years after the event and under some pressure, decided for the first time not to transmit them out of the jurisdiction cannot have any bearing on the question of what fair procedure required at the time these private records were first handed by the doctor to counsel for the third-named respondent, or at the earlier time when he was ordered to produce them.
If one were to be influenced by the undertaking of the Minister in the course of the hearing, it could only be on the basis that the argument in relation to the medical reports was rendered moot in the sense that there was no longer a real issue between the parties in relation to the medical records. As it happens, this Court has quite recently examined the concept of mootness in Goold v. District Judge Collins (Supreme Court unreported 12th July, 2004) and it is unnecessary to repeat that
discussion here. It was noted, in particular, that the notion of mootness has been much explored in American and Canadian cases some of which are examined in Goold.
There is an elaborate examination of the American doctrine of mootness in Honig v. Doe 484 US 305 . In the concurring judgment of Rehnquist C.J., he noted exceptions to the mootness doctrine, and in particular instances in which the United States Supreme Court had refused to dismiss as moot cases in which the defendant voluntarily ceases, at some advanced stage of the litigation, whatever activity prompted the plaintiff to seek relief. This case is a perfect example of such a situation. The undertaking offered here was offered in circumstances where it was clear that there were grave difficulties in the authorities’ position. No such undertaking had been offered in the High Court.
In the leading case of Borowski v. Canada  1 SCR 342, the rationale of the modern mootness rule was elaborately explored by the Supreme Court of Canada. The second rationale cited is:-
“… based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue.”
This sits well with the reasoning of Rehnquist C.J. in Honig. The Courts scarce resources, he said, “are squandered in every case in which it becomes apparent after the decisional process is under way that we may not reach the question presented”.
Dealing with the cognate area of reluctance to enter into a constitutional question in litigation which can be resolved in another way, both O’Higgins C.J. in M v. An Bord Uchtála  287 and Finlay C.J. in Murphy v. Roche  IR specifically reserved the power of the Court, in the interest of justice, to embark on a constitutional issue even if it were not necessary to do so for the resolution of the case, when the interest of justice require it.
There is also the consideration that it would not be conducive to the interest of justice if a party (whether a State party or otherwise) could persist in a particular stance until a very late stage of litigation and then, having got a sense of the way the case was going, avoid a decision by giving an undertaking. Of course there are cases, notably in the area of private law, where a dispute between private parties would be fully resolved by an undertaking, and the Court should encourage this. But in the area of public law I do not think that the Court is bound to desist from adjudication simply because a very late undertaking has been given. In all the circumstances, including the relative novelty of applications such as the present, and bearing in mind what is said below, I consider that it is unnecessary for the Court to pronounce definitively on the issue of the medical records. There may of course be good reason for the excisions from the correspondence but their existence make its difficult for me to arrive at any firm conclusion as to what the authorities had in mind. It is difficult to see any reason for taking evidence on oath other than the prospect of its use in a court: the same applies to the making of a certified transcript.Despite these matters, which cause me considerable concern, I believe that the specific circumstances of this case make it proper to dispose of it in the manner proposed by the learned Chief Justice. Firstly, no appeal has been taken against the order of Ó Caoimh J. which quashed the order purportedly made by the first-named respondent on the 25th March, 2002. This in turn appears to render moot the application for a declaration that s.51 of the Act of 1994 is repugnant to the Constitution. The undertaking by the Minister not to transfer to the United Kingdom the applicant’s medical records seems to render moot the very serious issues arising about these records and the evidence of Dr. Browne relating to them. The mobile phone is admitted to be outside the scope of the request. The applicant’s sister and brother-in-law did not attend the hearing and therefore did not give evidence. They appear have been entitled to take this course, apart from anything else, by reason of the fact that the summons served on them required their attendance on a date about two years before the date of issue of the summons. The phone records appear to be of purely investigative utility and not to be capable of admission in evidence without further proof, in the absence of the Order which has been quashed.
I wish however to express my grave disquiet at the fact that private medical records were handed to the State authorities for possible transmission out of the jurisdiction without notice to the patient and without the protection of a judicial order. I am not holding that there are no circumstances in which such a thing may occur, but none were suggested in argument and none occur to me. I wish to emphasise again that I am attaching no blame to the doctor in question who had every reason to believe that his handing over of the records was required on the authority of a judge acting as such. Having received what, on the face of it, was a duly issued summons ordering him to appear at a particular courthouse “before a judge of the District Court”, it would have been extraordinary if he were of any other view.
I accept however that the question of mootness was not elaborately argued on this Appeal, since the State’s concession was so late. Equally, in light of that concession, my general remarks as to the status of the reports may be regarded as obiter. But I would not lightly interfere with patient/doctor confidentiality, to which I consider that the procedural protections afforded to banking confidentiality in Haughey v. Moriarty, cited above, apply a fortiori.
I do not feel confident, as the learned Chief Justice and Denham J. do, that the request made by the United Kingdom authorities, and the action taken by the Irish authorities on foot of it, was not intended to and has not produced material in a form which might be put before a court in the United Kingdom with the request for its admission as evidence. The factors which make me apprehensive in this regard are, first, the unambiguous statement of counsel for the authorities to the first-named respondent, secondly, the taking of evidence on oath and the creation of a stenographic record thereof and thirdly, the fact that there are apparently extensive excisions from the two letters of request which have been placed before the Court. There may be other communications which have not been placed before us at all. The first of these matters speak for itself. It is absolutely plain that counsel was affirmatively instructed to “ensure the chain of evidence” because “some of this evidence may form part of the prosecution evidence in the United Kingdom…”. This has been stated, but in a bare and unconvincing fashion, to have been a mistake, and I will not repeat the observations which make me consider this a very unsatisfactory contention. It is particularly noteworthy that the State authorities have not advanced any view as to whether or not the relevant material is open to use in evidence. On the contrary, they have preserved a studied silence on this topic and made strong submissions to the effect that the Court should not consider it at all.
I agree with the view of Denham J. that the express request of the English Authorities that the applicant be permitted to take legal advice about their requirements in relation to him does not of course in itself establish that he is entitled to notice of the s.51 proceedings as a matter of Irish law. But it does conclusively establish that the English Authorities saw no practical or principled objection to his being given notice of what was going on. The factual history of this case features many oddities of which by far the most striking is that the Irish Authorities have never explained why they did not comply with this request. Had they done so this litigation might have been unnecessary, and would certainly have been resolved much sooner.
Despite this, in all the circumstances outlined above, I concur with the order proposed by the learned Chief Justice. I hope that the discussion to which this case has given rise will ensure the smoother, more straightforward, and more thought out use of the relevant statutory provisions when next they become relevant.
Jason Brady & District Judge Gerard Haughton (1)
- 27 -
THE SUPREME COURTMurray C.J.
DISTRICT JUDGE GERARD HAUGHTON,
THE COMMISSIONER OF AN GARDA
SÍOCHÁNA AND THE MINISTER FOR JUSTICE,
EQUALITY AND LAW REFORM
AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of July 2005
This is an appeal from the refusal of the High Court (Ó Caoimh J.) to give relief by way of judicial review the effect of which would be to stop the Minister for Justice, Equality and Law Reform from transferring certain clothing and a mobile telephone the alleged property of the appellant and also medical records relating to the appellant maintained by the prison medical officers with a view to assisting in the investigation of a murder committed in England. The proposed transfer would be carried out pursuant to the provisions of sections 51 to 55 of the Criminal Justice Act, 1994 and the Second Schedule to that Act which provisions were in turn enacted pursuant to Ireland’s obligations under the European Convention on Mutual Assistance in Criminal Matters.
I will be setting out the relevant provisions but they can be summarised as follows. A request may be made by say the prosecution authorities of England and Wales for specified assistance in the form of either witnesses’ evidence or particular items of property and the Minister is then entitled to nominate a District Court judge to receive the requested evidence. After the determination by the District Court judge of what is appropriate to be transferred it is for the Minister to decide to what extent he will carry out such transfer. In this case the main complaint of the appellant is that the procedure before the District Court judge took place without notice to him. He claims that the necessity for notice arises automatically from the fact that the procedure before the District Court judge constitutes the administration of justice. But even if the appellant was wrong in that fundamental proposition, he claims that he was at any rate entitled to notice both on the basis that his property rights were at stake and that there were serious issues of privacy in relation to the medical files and, indeed, ethical questions involving the doctor’s right to produce them.
The appellant makes two other complaints also. He says that the hearing before the District Court judge was wrongly permitted to take place the day before an application by him under the Police Property Act, 1897 to recover his property in the possession of the gardaí was listed for hearing and he argues that this was an unconstitutional interference with his own litigation in the courts. He then further complains that the entire procedure was wrong in that the District Court judge receiving the evidence sat as though he was sitting in an ordinary District Court and that documentation emanating from the authorities were forms appropriate to the District Court. Furthermore, the District Court judge, as indeed he was entitled to do under the Act, directed evidence to be taken on oath but this factor in the view of the appellant strengthened his submission that for all practical purposes there was a full blown court hearing and that in particular in that context the relevant medical officer from the prison would have felt inhibited from raising any ethical objection to his production of the medical records.
I will deal first with the medical files. I do so because counsel for the Minister has given to this court, at the hearing of the appeal, an undertaking on behalf of the Minister that he will not transfer the medical records to the English authorities. That being so, I would prefer to leave to another case where it was clearly relevant, the question of what, if any, protection a person such as the appellant should have in relation to a proposed transfer to another jurisdiction of his medical records. Of course, in this particular case they were not actually asked for, a fact which the Minister acknowledges and that is probably the main reason why he is giving the undertaking. There is no legal privilege between doctor and patient and as to what the rights of gardaí or prosecuting authorities would have in relation to obtaining medical records or viewing medical records as part of an ordinary Irish investigation are clearly questions which would be relevant in considering questions of whether, in a given instance, they can be transferred to another jurisdiction without the permission of the person involved. There are other problems also. Even in the case of a relationship which does not give rise to a legal privilege in the strict sense, a court may have regard to the confidentiality rights of a party in considering whether it is absolutely necessary that such evidence be given. These are all difficult questions and in view of the Minister’s undertaking, I think that it would be unwise to embark on an attempted resolution of them. I propose, therefore, to treat of this appeal as though the question of the medical records did not arise.
I propose now to reverse the normal sequence and to set out the law before coming to the facts. In order to understand the relevant provisions of the Criminal Justice Act, 1994 it is helpful to consider first the European Convention on Mutual Assistance in Criminal Matters. Ireland, as is the UK, is a signatory to that Convention. Article 1 paragraph 1 reads as follows:
Article 3 paragraph 1 provides as follows:
“The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.”
“The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents.”
Article 6 paragraph 2 provides:
“Any property, as well as original records or documents, handed over in execution of letters rogatory shall be returned by the requesting Party to the requested Party as soon as possible unless the latter party waives the return thereof.”
There are many other provisions in the Convention as to how the scheme is implemented but the above citations sufficiently indicate the nature of what is involved. As I have already mentioned, the Convention has been implemented in Ireland by certain provisions of the Criminal Justice Act, 1994. The relevant parts of s. 51 of that Act read as follows:
“51. – (1) This section shall have effect where the Minister receives –
(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or
(b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
(2) If the Minister is satisfied –
(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request….(4) In this section ‘evidence’ includes documents and other articles.(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section.”
Paragraphs 1 and 2 of the Second Schedule read as follows:
There are various other provisions in the Schedule for the protection of witnesses which I do not need to set out. At this point, I would merely pause to observe that the provisions of s. 51 which I have set out are taken almost word for word from s. 4 of the United Kingdom Criminal Justice (International Cooperation) Act, 1990. I say “almost” because apart from formal adaptations such as “the Minister” instead of “the Secretary of State” etc. there is one significant difference. Under s. 4 of the English Act, the Secretary of State is expected to nominate “a court” whereas under s. 51 of the Irish Act of 1994 the Minister is expected to nominate “a judge of the District Court”. It is interesting that the draftsman of the Irish Act thought fit to provide for the nomination of a judge as a persona designata rather than a particular court. This can only be explained by the draftsman taking the view that what was involved here was not the administration of justice. As to whether he was right or wrong in that view is, of course, an issue which this court has now to consider. As has been said before, not everything that a court does is necessarily administration of justice but if an Act gives a court a task the question of whether that task constitutes administration of justice is certainly going to be litigated.
“1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court.
2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.”
Under this statutory scheme the task of receiving the “evidence” is given to a judge of the District Court nominated by the Minister for Justice, Equality and Law Reform. The scheme of the Act makes it clear that it is nevertheless an evidence gathering exercise. It is quite clear from the judgment of O’Keefe J. in the Supreme Court with which Ó Dálaigh C.J. and Walsh J. agreed in Jennings v. Quinn  I.R. 305 that in the case of a domestic crime for instance, there is a public interest in the gardaí after they have effected a lawful arrest being entitled to retain possession or custody of property whether it be for the purpose of that particular criminal charge or in support of some other criminal charge and furthermore that there is a public interest in the sending out of the jurisdiction the property in the hands of the police for the purposes of a criminal prosecution in such jurisdiction. That case was dealing with a narrower situation than this case and it long predated the Convention on the 1994 Act. But in considering what are constitutional and fair procedures in relation to the implementation of the 1994 Act, the Supreme Court’s views in the Jennings case as to what is in the public interest are not without relevance.
For the purposes of a domestic crime, evidence gathering in this jurisdiction does not involve a judge. That is not the case however in most civil law jurisdictions where there is an examining magistrate independent of the police authority. That may be one reason why the procedure under the 1994 Act is, as pointed out by McGuinness J. in Salinas de Gortari v. Smithwick (No. 2)  2 IR 553“sui generis”. In this connection, McGuinness J. said the following at p. 563:
“It is not, I think, valid to compare it either with an actual trial or with police investigative procedure prior to charge under the Criminal Justice Act, 1984, or indeed with the taking of depositions in the District Court prior to sending an accused person forward for trial on indictment. The s. 51 procedure is a procedure governed by statute and must be considered within the bounds of that statute.”
I am in complete agreement with that statement. Clearly, in the interests of protecting legal and constitutional rights, the Irish state would have to adopt different procedures for providing property and evidence to another jurisdiction over which it would have no control. Ensuring that the evidence gathering is done before a designated judge provides a clear certified record as to what the information provided was and as to what was considered appropriate to be transferred as property evidence. This is all the more important given the ambiguous meaning of “evidence” a point to which I will return. An evidence gathering procedure whether done by the Garda Síochána or done by a question and answer session in the presence of a judge could not constitute “administration of justice” within the meaning of our established jurisprudence making full allowance for the doubts expressed in the fourth edition of Kelly on the Irish Constitution as to what the exact content of that jurisprudence is. In the Salinas de Gortari case McGuinness J. at p. 559 of the report states the following:
“It is common case that the procedure under s. 51 of the Act of 1994, is not ‘the administration of justice’ as referred to in Article 34 of the Constitution.”
It is clear that in that case the Minister made that concession and, in my opinion, quite rightly so. The debate over the characteristics of administration of justice and the relevant extensive case law is well explained in the fourth edition of Kelly on the Irish Constitution in chapter 6. I do not consider that this is a suitable case in which to enter into a further analysis of this question. It is sufficient to point out that in this case it was no part of the function of Judge Haughton, the nominated District Court judge to resolve any justiciable controversy.
That does not necessarily mean that the designated judge did not have to act judicially in relation to particular decisions which he made as to the appropriateness of transferring the property etc. I have no doubt that he did have to act judicially. There are numerous cases and particularly those relating to the Land Commission in which it has been made clear time and again that an administrative body may have to act judicially. In doing so it is not, however, administering justice.
In an affidavit grounding the original application for judicial review Mr. Patrick Daly, solicitor in the firm of Dermot H. Morris and Co. who were solicitors for the appellant deposed to his instructions from the appellant that certain items of the appellant’s clothing had been seized and retained at Ballymun garda station in December 2001 while he was detained there in connection with an investigation into a burglary committed in this State. The affidavit goes on to explain that the appellant pleaded guilty in an Irish case and that he then sought the return of his clothing items which had been taken from him in the garda station. He thereupon brought an application pursuant to the Police Property Act, 1897 and a date for hearing of that application was fixed for the 26th March, 2002. The affidavit then deals with summonses served on the appellant’s sister and brother-in-law who appeared in the District Court and gave evidence. In the event that did not materialise but it does have a marginal relevance to which I will refer later in this judgment. What is relevant however is that the affidavit then refers to an order of the 25th of March 2002 made by Judge Haughton in purported compliance with the provisions of s. 51 of the Criminal Justice Act, 1994 and says that he was instructed that the appellant would not have agreed to that order and would have tested and challenged whether the conditions and requirements of the relevant statute had been complied with had he had notice of the hearing. A supplemental affidavit by Mr. Daly was sworn on the 12th April, 2002. He refers to a hearing by the former President of the District Court on the 11th of April 2002 in connection with the police property application. It is deposed to that the President made an order that the clothing must remain in garda custody pending a further order of the District Court. There may be some uncertainty as to what happened after that but it would appear that if and in so far as there was any perceived conflict between the order of Judge Haughton and the order of the President of the District Court, this did not prove to be of any relevance in that counsel for the State authorities undertook that pending the resolution of the legal issues, the President’s order would be complied with.
Jason Brady himself swore two affidavits which in the light of events which happened are not really relevant to the issues on this appeal and I do not propose to refer to them. The next affidavit to which I intend to refer is that of Mr. James Clerkin, Assistant Principal Officer with the Department of Justice, Equality and Law Reform, sworn on the 29th April, 2002. Mr. Clerkin deposed to having received a letter of request dated the 20th December, 2001 for assistance from the Crown Prosecution Service, West Midlands, Birmingham in the United Kingdom and he goes on to comment on the fact that this letter of request was identical in form to all other requests received from the Crown Prosecution Service in the U.K. The deponent then says that the Minister was satisfied that there existed reasonable grounds for suspecting that an offence under the law of the United Kingdom had been committed and that an investigation into that offence was being carried out in the United Kingdom. The affidavit goes on to state that the Minister formed the view that items 3, 4, 6, 8 and 9 in the letter of request could be proceeded with by way of application pursuant to s. 51 of the Criminal Justice Act, 1994. After the Crown Prosecution Service had been so notified a further letter arrived from that service dated the 21st February, 2002. This letter expanded upon the original letter of request. At this point, I think it relevant to refer to the contents of both letters of request. The letter of the 20th December, 2001 after giving a detailed recital of the alleged facts contained the following sentence:
“The investigating officers in England would therefore ask that they be permitted to carry out the following enquiries in Ireland”.
Underneath that request there were then listed thirteen numbered matters, the items agreed to as aforesaid by the Minister were as follows:
“3. To arrange for Jason Brady to be medically examined for injuries he may have sustained during the incident.
4. To request a coloured photograph of Mr. Brady.
6. To request a set of fingerprints from Mr. Brady.
8. To seize all clothing attributable to Jason Brady and secure it in a manner which will allow a subsequent examination of the clothing by forensic scientists.
9. That enquiries be made to establish any subscriber or registration details relating to any mobile telephone used by or seized from Jason Brady and obtain billing details relating to the usage of this mobile telephone for the period from the 23rd November, 2001 to the 19th December, 2001.”
The letter included the following:
“In relation to the above enquiries paragraphs 1-6 it is accepted that Jason Brady may only be invited to co-operate in the procedure set out. It is also accepted and desired that he should be given the opportunity of seeking legal advice from a lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions insofar as they are applicable.”
The suggestion that the applicant be given an opportunity to obtain legal advice coming as it does from the U.K. authorities does not of itself, in my opinion, strengthen the applicant’s case for judicial review. I would not attempt to speculate on the motive behind that suggestion. It may well have been purely altruistic but equally it might have been made with a view to having the option at least of seeking to have the evidence taken before the District Judge admitted as evidence proper at the English trial.
Further and up to date details of the English investigation were contained in the second letter of the 21st February, 2002 and that letter contained a specific request that s. 51 of the Criminal Justice Act, 1994 be availed of in relation to obtaining the evidence approved by the Minister.
Detective Garda Kevin Daly swore an affidavit on the 24th May, 2002 in which he said that Jason Brady, at the time of his arrest, had a holdall bag containing clothing and other items and that he agreed to hand them over to the gardaí. Furthermore, according to Garda Daly, the appellant, at Ballymun garda station later consented to hand over the clothing on his person and a mobile phone. It follows therefore that the detective garda is denying that there was a seizure. I do not think that anything turns on this conflict of evidence.
In a further affidavit of Mr. Clerkin sworn on the 7th February, 2003, he says among other things that are not particularly relevant to this appeal that at the time of seeking a date for the hearing of the section 51 application, as he calls it, the Minister was not aware of the existence of a police property application to be made by the appellant on the 26th March, 2002 and he says that it was not until the 19th March, 2002 that he himself became aware of the police property application. In another paragraph he deposes to the fact that the hearing date for the taking of the evidence had been fixed in the office of the President of the District Court and that the Minister played no part in it.
Finally, I should mention that the evidence was duly received by Judge Haughton on the 25th March, 2002 and there is an official transcript of it. The witnesses who gave evidence, all of which were sworn by the direction of Judge Haughton, were Dr. Noel Browne, Jim Faughnan and Detective Garda Kevin Daly. Dr. Browne gave evidence in respect of Mr. Brady’s medical history in custody. Detective Garda Daly gave evidence in respect of the clothing and other items held by the gardaí and Mr. Jim Faughnan gave evidence in respect of the telephone account. For all practical purposes the evidence of Dr. Browne took the form of handing in the medical reports in the possession of the prison medical services so that they could be photocopied for the purposes of transmission and Judge Haughton directed that that be done. It should be noted that the letter of request did not actually ask for these records. It asked for a medical examination to be carried out. It has been argued in this court, however, that the Minister or the judge receiving the evidence does not have to interpret the letter of request too literally and that in respect of any given item connected matters though not asked for could be made the subject of evidence transmitted. This submission seems to me to be unsound. In the event, however, the medical reports are not now going to be transmitted to England pursuant to the undertaking of the Minister.
With regard to the evidence before Judge Haughton in relation to property allegedly belonging to the appellant in the possession of the gardaí there was evidence from Garda Daly of the police property application intended to be made the following day “in respect of at least some of the items which are in court here today”. The garda went on to explain that the police property application was an application made by the appellant himself. He said that the application named the majority but not all of the properties taken by the gardaí. This included some of the property from the holdall bags, some of the clothing he wore at the time of arrest and his rings and mobile phone. The garda then went on to give evidence of the set of original fingerprints of the appellant which he had in his possession. He said that he had the fingerprints and a photograph accompanying them. It was submitted by counsel for the State to Judge Haughton that having regard to the terms of the letter of request the mobile phone could not be transferred as it was only telephone records which were requested but that the clothing could be transmitted and in addition the roll of film and the fingerprints. The judge, however, took the view that the mobile phone was “a relevant piece of evidence”. Counsel agreed with him and told him that his jurisdiction was to receive such evidence to which the request might relate as appeared to him to be appropriate for giving effect. The judge then again expressed the view that the mobile phone itself was something which would be relevant. That approach of the District Court judge was wrong. He was bound to confine his remit to what was requested. The judge also took the view that certain photograph albums mainly of the appellant and his daughter were not of evidential value in England. The judge then said the following:
Counsel stated that they were clothing. The judge, however, considered them jewellery. The following dialogue then took place:“Justice Haughton: All of the items in the police property application with the exception of the rings and the photo album. I make an order that all of the other items be handed over to the investigative authority.
“Alright. I will make an order for all of the items referred to in the police property application other than the photograph albums. What do you say about the rings?”
Q. Mr. O’Reilly: In relation to the film and fingerprints can you identify the roll of film?
A. That is the roll of film.
Q. Thank you very much. Garda Daly is holding up a roll of film for the purpose of the record. Firstly, judge, I’d ask that the clothing be made as exhibit A to the transcript. And you have that clothing in court, is that correct?
A. I have judge.
Q. The mobile phone be exhibit B, have you got the mobile phone?
A. I have, judge.
Q. The fingerprints as exhibit C and photographs?
Q. And the roll of film as exhibit D. I think that comprises the evidence to be transferred. Garda Daly has very kindly handed me a copy of the list of the items of clothing which are contained within an evidence bag; isn’t that correct?
A. They were the items found in the holdall bag.
Justice Haughton: Alright.”
It is quite clear from that bit of transcript what the oral determination of Judge Haughton was. Once the designated District Court judge has certified the transcript the correct procedure is for him to see to it that the evidence received by him is furnished to the Minister for transmission to the court, tribunal or authority that has made the request in accordance with the Criminal Justice Act, 1994. Presumably, in this connection it would be correct practice to enclose a formal covering letter setting out precisely the “evidence” considered appropriate to be transmitted to the Minister. This, of course, would be subject to the provisions of subparagraph (2) of paragraph 4 of the Second Schedule to that Act. A wrong procedure was adopted in this case in so far as a formal District Court order was drawn up on a form appropriate to an order of the District Court when administering justice. Indeed, the document is headed “Courts Act, 1971 section 14”. It refers to “District Court No. 50” and to “one of the judges of the said District Court assigned to the said district”. It is signed by Judge Haughton under the title “Judge of the District Court assigned to said district” whereas of course he was a designated person having been designated by the Minister. As though it was a normal court order there is then the certificate by the District Court Clerk. Quite apart from those defects the actual body of the order is poorly drawn up in that it simply says:
It makes no reference whatsoever to the transcript of the oral evidence.
“Hand over all items in police property application other than rings and photo albums, items to be transferred to investigating authorities including roll of film and fingerprints and photograph of Mr. Brady.”
This brings me back to the attempt to get evidence from members of the appellant’s family. In the event they did not give evidence and nothing turns on that. I would point out that in this connection also there were procedural defects which should not be repeated in the future. Witness summonses were issued as though the case was a District Court case. Indeed, the same was true of the summons served on Dr. Browne which was in fact signed by a different judge of the District Court. This confusion of roles is most unsatisfactory. Is it sufficiently wrong to warrant certiorari in this particular case? I think not. I might well have a different view if the medical reports were still in jeopardy of being transmitted. Because of the formal way that the sitting was conducted and because of the formal documentation in court form it would be more than understandable that a doctor such as Dr. Browne would be intimidated against raising any ethical problems about producing the medical reports. But that does not now arise. The same is true in relation to summonses served on the relatives. That does not matter in practice now because they did not agree to give evidence. Mr. Faughnan was a purely formal witness and there was no ethical problem in relation to his evidence and Garda Daly would have been well aware of the purpose of the procedure and his evidence would have had to be identical irrespective of what kind of documentation was used. At any rate he would not have been served with a witness summons.
I am equally satisfied that there are no grounds for certiorari based on an unconstitutional interference with the Police (Property) Act application for the reasons set out in the judgment of the Chief Justice.
I turn now to consider whether judicial review should be granted on the principal ground for which it is contended by the appellant, that is to say that he ought to have been given notice of the proceedings. I am satisfied that notice is not required in the absence of special circumstances, if the exercise is evidence gathering for an investigation only. It would appear that that is the case here.
I agree with the view of the Chief Justice that a specific request to the Minister would be necessary to enable the “evidence” gathered to be used at the trial. At that stage the Minister would have to ensure that the accused would have a right to object to the evidence at the trial if, as in this case, no notice of the Irish hearing had been given to the relevant person.
Secondly and quite apart from that consideration even if it were thought that the relief could still be justified and perhaps appropriate on one view, at the end of a hearing certiorari or any other discretionary relief on judicial review can always be refused as a matter of discretion provided of course the discretion is properly exercised. In a purely domestic case, it may well be a valid exercise of the discretion to grant the relief where it is thought that the State’s behaviour in the case ought to be penalised. But where the case is one such as this with international dimensions and where the State is effectively playing the role of agent for a requesting State under an international convention, I think that the court should solely be concerned with what might be just or unjust and should not be precluded necessarily from refusing certiorari merely because the Irish State authorities have adopted wrong procedures provided that no injustice is caused to a party concerned.
The judgment of Hardiman J. has drawn attention to another aspect of the case on which I would like to comment. He points out that counsel for the State, when appearing before Judge Haughton, stressed the importance of systematically ordering the exhibits produced and which the judge would think appropriate to be transferred to England because they might be required as evidence. Hardiman J. then goes on to observe that before this court, senior counsel for the State suggested that the reference to “evidence” in the District Court was a mistake. Hardiman J. expresses considerable concern about this discrepancy. I am satisfied that if there was a “mistake” it arose on the appeal before this court and not before the District Court judge. I see no point in an evidence gathering process which includes the transfer to England of goods and chattels of a suspect unless it is envisaged that some one or more of such goods and chattels may in fact be produced ultimately at a trial as evidence. It was, therefore, perfectly sensible to suggest a systematic ordering of exhibits and I agree with the Chief Justice that no significance should be attached to it. I am satisfied, therefore, that counsel for the State in the District Court made no mistake.
Undoubtedly Hardiman J. has highlighted a serious problem about this legislation. The legislation applies to jurisdictions which do not have common law systems at all and Irish courts would have no idea how judges in those courts would approach the question of the admission of “evidence” transferred at the ultimate trial. Those courts are perfectly entitled to have their own rules of evidence which might not necessarily include a hearsay rule for instance. But the right of an accused to raise objection to evidence against him is fundamental and universally recognised in all civilised countries. If, therefore, the “evidence” is taken before the District Court judge without notice to the suspect it is incumbent on the Minister in my view to so inform the requesting prosecuting authority.
In view of the fact that no criminal proceedings had in fact been instituted and having regard to what has been said in court by counsel for the State authorities, I do consider that in this case, at any rate, the request must be treated as confined to investigation. I would reserve however to a suitable case a final opinion as to whether as a matter of law in all circumstances section 51(5) precludes the use of evidence provided for a criminal investigation at a trial without the consent of the Minister. It depends on the meaning to be given to the word “purpose”. I share some of the apprehensions of Hardiman J. though not to the same extent as he does that a domestic power in a relevant foreign country could be exercised so as to use the evidence furnished as evidence in the trial without more. Even if that is theoretically possible, I am satisfied that in this particular case the court in its entitlement to take general notice of every day matters, is well aware that the requirements of a fair trial in the jurisdiction of England and Wales are broadly similar though not identical to the requirements in this jurisdiction and even more importantly that the European Convention on Human Rights is incorporated into English law. I think it inconceivable therefore that a trial judge made aware of the fact that transmitted articles were so received by the designated District Court judge and transmitted without notice to the accused would exclude the right of the same accused at the trial to put forward an objection to the evidence.
In the light of the views which I have expressed on the nature and requirements of the statutory scheme, it is clear that in my view section 51 of the 1991 Act is not repugnant to the Constitution. I would dismiss the appeal brought on this ground.
I would affirm the order of certiorari made by the High Court because it is not in dispute that that order was correctly made. The District Court as such was never concerned in the proceedings and, accordingly, the order as drawn up was quite inappropriate.
In every other respect also, I would dismiss the appeal subject to the qualification relating to the mobile telephone indicated by the Chief Justice. Counsel for the State authorities has already made clear that he had instructions that the Minister would be prepared to give the undertaking relating to the medical reports.
Brady v. D.J. Haughton