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6. CHAPTER 6 POWERS

A Introduction

6.01     In this chapter, the Commission discusses the powers of tribunals of inquiry. This is an important issue for a number of reasons. First, those charged with the establishment, management and operation of tribunals of inquiry should know the precise nature and limit of the powers possessed by them. Second, given the potential of tribunals of inquiry to impact on the constitutional rights of those who appear before them, those individuals have a legitimate interest in knowing the extent of the powers possessed by tribunals of inquiry.

6.02     The powers of tribunals of inquiry derive from the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, and the inherent power of a tribunal of inquiry to govern its proceedings, subject to the constitutional rights of those who appear before them.^[1] The powers of tribunals of inquiry may be divided into two categories, substantive powers, and enforcement powers. The first category includes all those powers, rights and privileges that tribunals of inquiry may exercise to go about their task, for example, the power to summon witnesses. The second category includes those powers that tribunals may use to enforce those decisions.

B Substantive Powers

(1) The Present Law

6.03     The main provisions conferring powers on tribunals of inquiry are section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921, section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, and section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 2002.

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(a) Specific Powers

6.04     Section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921 provides that a tribunal shall have all the "powers, rights and privileges as are vested in the High Court … or a judge of … such court, on the occasion of an action" in respect of:

• Enforcing the attendance of witnesses;

• Examining them on oath, affirmation or otherwise;

• Compelling the production of documents;

• Issuing a commission or request to examine witnesses abroad.

(b) General Powers

6.05     Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 provides that a tribunal "may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders." This may be described as a catchall provision, which confers on tribunals a power to make such orders, as it considers necessary.

(c) Scope of Powers

6.06     It is arguable that section 4 of the 1979 Act is much broader in scope than section 1(1) of the 1921 Act. Section 1(1) limits the powers, rights and privileges of a tribunal in respect of the defined categories relating to the taking of evidence to those of the High Court on the "occasion of an action." Section 4 of the 1979 Act, in contrast, contains no such limitation. It vests tribunals of inquiry with all the powers of the High Court or judges of that Court "in respect of the making of orders."

6.07     The Supreme Court in Lawlor v Flood^[2] considered these two provisions. In this case the sole member of the Planning Tribunal made three orders directing the applicant to attend for questioning before counsel for the Tribunal and to make discovery and produce all documents relating to accounts for or on behalf of the applicant between the years 1987 and 1994 and, in particular, records of any

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payment received by him in respect of planning matters. They also directed the applicant to furnish an affidavit stating the names and giving details of any company of which the applicant was a shareholder, director or in which he had a beneficial interest between 1987 and 1994.

6.08     The applicant argued that the respondent had no power to order him to attend for examination or to furnish such an affidavit in the manner and terms requested because the respondent was purporting to exercise a jurisdiction greater than that vested in the High Court. The respondent argued that section 4 of the 1979 Act empowered him to make whatever orders were necessary for the purposes of the functions of the Tribunal and that he was not limited to the powers of the High Court in this regard. In support of this submission he argued that section 4 which provides that a tribunal "may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders" should be construed disjunctively. Accordingly, it was argued that the tribunal had the power to make whatever orders it considered necessary and that the reference to the High Court in the second part of the section related merely to the enforcement of the order made under the first part of the section.

6.09     The Supreme Court rejected this contention. It held that section 4 of the 1979 Act had to be read as a whole, and in conjunction with section 1(1) of the 1921 Act. Accordingly, under section 4 of the 1979 Act a tribunal of inquiry may make such orders as it considers appropriate for the purposes of its functions and in the making of such orders it has the powers, rights and privileges of the High Court in the course of an action. This involves a tribunal of inquiry asking itself two questions before making an order, (1) is the order necessary for the purposes of its functions, and (2) could the High Court exercise a similar power on the occasion of an action.

(2) Consultation Paper

6.10     The Commission in the Consultation Paper recommended the amalgamation of section 1(1) of the 1921 Act and section 4 of the

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1979 Act into one section, so that the powers of a tribunal of inquiry could be set out in clearly.^[3]

(a) General Powers

6.11     The Commission in the Consultation Paper considered that although there was considerable merit in being able to set out individually each and every power of a tribunal of inquiry, such an approach would inevitably fail to identify all of the powers which might be needed by tribunals of inquiry. Accordingly, it recommended the retention of a general catch all provision, which would entitle a tribunal of inquiry to make such orders, as it considers necessary for the purposes of its functions.^[4]

6.12     The Consultation Paper then proceeded to consider what form this general powers provision should take. It noted that section 4 of the 1979 Act, as interpreted by the Supreme Court in Lawlor v Flood,^[5] limited the general powers of tribunals of inquiry to those possessed by the High Court on the occasion of an action.^[6]

6.13     However, in the Consultation Paper the Commission considered that it was not appropriate to limit the powers, rights and privileges of tribunals of inquiry to those possessed by the High Court as there may well be occasions when a tribunal of inquiry will need powers not possessed by the High Court in order to complete its task. In support of this view, the Commission pointed out the differences between inquisitorial systems such as tribunals of inquiry and adversarial systems such as courts of law.^[7]

6.14     The Consultation Paper then considered the approach of the Commission to Inquire into Child Abuse to this question. It noted that the general powers provision in the Commission to Inquire into Child Abuse Act 2000 does not limit the powers of the Commission to Inquire into Child Abuse to the powers of the High Court. Section 4(3) of the 2000 Act states that "[t]he Commission shall have all such

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powers as are necessary or expedient for the performance of its functions." The test is a functional one which is subject to general constitutional principles. If the Commission to Inquire into Child Abuse considers that the proposed power is necessary or expedient having regard to its functions then the Commission has that power.

6.15     In the Consultation Paper, the Commission favoured the approach adopted by the Commission to Inquire into Child Abuse. It recommended that any amendment of the tribunals of inquiry legislation should include a similar provision, subject to one change. It recommended the insertion of a reasonableness provision, to the effect that a tribunal of inquiry may make such orders as are reasonable and necessary for the purposes of its functions.^[8]

(b) Specific Powers

6.16     In the Consultation Paper, the Commission did not recommend any substantive changes to the specific powers relating to the taking of evidence listed in section 1(1) of the 1921 Act. However, it did make a number of recommendations to the way that these powers should be framed in any amendment of the tribunals of inquiry legislation.^[9]

6.17     First, the Commission recommended that although the powers, rights and privileges of tribunals of inquiry in relation to the taking of evidence should continue to be those of the High Court, they should not continue to be fixed to those possessed by the High Court on the occasion of an action.^[10] The Consultation Paper highlighted a number of potential problems which could arise if the powers, rights and privileges of inquiries continued to be limited in this way. It noted that tribunals of inquiry, as inquisitorial vehicles, choose what witnesses appear before them. This is not the case in proceedings before the High Court where the witnesses are those of the parties. The Consultation Paper posed the question of whether the limitation in section 1(1) of the 1921 Act on the power to call witnesses to that of the High Court upon the occasion of an action, permits a tribunal of inquiry to call its own witnesses. The Commission in the

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Consultation Paper recommended removing this potential difficulty by removing the limitation "on the occasion of an action" and replacing it with "in respect of the making of orders."^[11]

6.18     Second, in the Consultation Paper, the Commission accepted that, while it is likely that section 1(d) and section 4 are subject to the implied saver "that the tribunal does not enjoy any power to attach for contempt," it recommended the insertion of the phrase "provided that the tribunal does not enjoy any power to attach for contempt" into any amended tribunals of inquiry legislation to give legislative effect to the ruling in In re Haughey.^[12]

(3) Discussion

(a) Commissions of Investigation

6.19     Section 15 of the Commissions of Investigation Act 2004 provides commissions of inquiry with a general power, subject to the rules of constitutional justice, to establish rules and procedures for (a) the receiving of evidence, and (b) the receiving of submissions.

6.20     Section 16 of the 2004 Act deals with a number of specific powers relating to the taking of evidence. These include the power to:

• direct in writing any person to attend, to give evidence, and to produce any documents in that person's possession or power which are specified in the direction;^[13]

• direct a witness to answer any questions it believes to be relevant to the matter under investigation;^[14]

• examine or cross-examine a witness on oath or affirmation or by use of statutory declaration or written interrogatories, to the extent the commission considers proper in order to elicit information relevant to the matters under investigation;^[15]

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• direct in writing any person to provide a list of all the documents in that persons possession or power relating to the matter under investigation, and to specify which of these documents the person objects to disclosing, and the reasons why;^[16]

• direct a person who has provided information to experts or advisors appointed by the commission to swear a statement confirming, if such is the case, that the information was given voluntary and that it is to the best of that person's knowledge true and accurate.^[17]

6.21     In addition, section 16(1)(i) of the 2004 Act gives a commission of inquiry a general power to give any other directions that appear to it to be reasonable.

(b) United Kingdom

6.22     Section 19 of the UK Inquiries Act 2005 deals with a number of specific powers relating to the taking of evidence and provides that the Chairperson of an inquiry may by notice direct a person:

• to attend at a time and place stated in the notice to give evidence; or

• to provide evidence in the form of a written statement; or

• to produce any documents or things in that person's control, or possession relating to the matter under investigation.^[18] The direction may be varied or revoked if the person to whom it is addressed satisfies the inquiry that he or she is unable or cannot reasonably be expected to comply with the direction.^[19] The direction must explain the possible consequences of not complying with the notice, and outline the process by which a person may make a claim that he or she is unable, or cannot reasonably be expected, to comply with the direction.^[20]

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6.23     The Explanatory Notes that accompanied the Inquiries Bill 2004, which became the 2005 Act, stated that it was envisaged that most requests for information from an inquiry would not be made under section 19. It anticipated that an inquiry would usually ask for information informally first, and it noted that experience from past British Inquiries has shown that the vast majority of informal requests will be complied with.^[21]

6.24     The Explanatory Notes envisaged three main scenarios in which powers of compulsion would be likely to be used: 1) a person is unwilling to comply with an informal request for information; 2) a person is willing to comply with an informal request, but is worried about the possible consequences of disclosure (for example, if disclosure were to break confidentiality agreements) and therefore asks the chairman to issue a formal notice; or 3) a person is unable to provide the information without a formal notice because there is a statutory bar on disclosure.^[22]

(4) Recommendation

6.25     The Commission considers that as tribunals of inquiry will often have varied subject matter and procedures, any attempt to delimit or quantify the whole range of powers needed by them would be bound to omit some power of relevance. Accordingly, the Commission takes the view that the tribunals of inquiry legislation should be amended to confer a general power on tribunals of inquiry to make such orders as they consider necessary and reasonable for the purposes of their functions. As tribunals of inquiry differ largely from courts, the Commission considers that the capacity of a tribunal of inquiry to make orders of a general nature should not be limited to those which the High Court can make on the occasion of an action.

6.26     The Commission recommends that the specific powers of a tribunal of inquiry in relation to the taking of evidence should be retained but for the reasons given in the Consultation Paper and

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outlined above, they should not be limited by reference to the powers of the High Court.

6.27     The Commission recommends that the tribunals of inquiry legislation should be amended to contain the following provision concerning the powers of tribunals. A tribunal of inquiry may make such orders as are necessary and reasonable for the purposes of its functions. Without prejudice to the generality of the foregoing, it may make orders: a) Enforcing the attendance of witnesses and examination of them on oath, affirmation or otherwise; b) Compelling the production of documents or things; c) Issuing a commission or request to examine witnesses.

C Enforcement Powers

(1) The Present Law

6.28     The main provisions relating to the enforcement of tribunal orders are section 1(2) of the Tribunals of Inquiry (Evidence) Act 1921 and section 4 of the Tribunals of Inquiry (Evidence)(Amendment) Act 1997.

6.29     The main difference between the two provisions is that whereas section 1(2) of the 1921 Act criminalises those who attempt to obstruct the proceedings of tribunals of inquiry, section 4 of the 1997 Act is aimed at shoring up the ability of tribunals of inquiry to proceed with their investigation by providing a mechanism whereby the orders of a tribunal may be enforced by orders of the High Court.

(a) Offences

6.30     Section 1(2) of the 1921 Act arms tribunals of inquiry with a broad array of powers to deal with those who decide to obstruct them. It provides that:

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"If any person: a. on being duly summoned as a witness before a tribunal makes default in attending; or b. being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the tribunal to do so, or to produce any documents (which word shall be construed in this subsection and in subsection (1) of this section as including things) in his power or control legally required by the tribunal to be produced by him, or to answer any question to which the tribunal may legally require an answer, or c. wilfully gives evidence to a tribunal which is material to the inquiry to which the tribunal relates and which he knows to be false or does not believe to be true, or d. by act or omission, obstructs or hinders the tribunal in the performance of its functions, or e. fails neglects, or refuses to comply with the provisions of an order made by the tribunal, or f. does or omits to do any other thing and if such doing or omission would, if the tribunal had been the High Court, have been contempt of that Court, the person shall be guilty of an offence."

(b) Enforcement

6.31     Section 4 of the 1997 Act gives the tribunal the power to apply to the High Court for an order enforcing an order of the tribunal which has not been complied with. It provides: "Where a person fails or refuses to comply with an order of a tribunal, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order and make such order as it considers necessary and just to enable the order to have full effect" It should be noted that a failure to comply with an order made pursuant to section 4 of the 1997 Act is not an offence but rather contempt of court.

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6.32     An example of how section 4 operates in practice is provided by the case Flood v Lawlor.^[23] In this case, the plaintiff, who was the sole member of a tribunal of inquiry, ordered that the defendant make discovery of certain categories of documentation. Following the making of that order, the plaintiff sought, and the High Court granted, an order compelling the defendant to comply with the order and an order compelling him to attend before the plaintiff to give evidence. The defendant failed to comply with the order for discovery and refused to answer relevant questions put to him at public hearing of the tribunal.

6.33     The plaintiff brought a motion for the attachment and committal of the defendant for contempt of court. The High Court sentenced the defendant to three months imprisonment with the first seven days to be actually served, with the balance of the sentence to be suspended to enable the defendant to comply with the order of discovery and swear a full and proper affidavit of discovery. Thereafter, the defendant made discovery in respect of a considerable volume of documentation. However, the plaintiff was not satisfied with the discovery made and the matter was re-entered for hearing before the High Court. The High Court found that there had been non-compliance by the defendant of a serious nature and ordered, inter alia, that the defendant should serve a further seven days of the sentence, pay a fine of IR£5,000 and make further and better discovery on oath in the form prescribed by the Rules of the Superior Courts 1986.^[24]

6.34     The defendant appealed to the Supreme Court. It was argued that as the contempt complained of was civil contempt, the appropriate penalty was imprisonment, but only until such time as the contempt was purged. This argument was based on the premise that civil contempt is coercive in nature rather than punitive. However, the Supreme Court dismissed the appeal. It held that contempt proceedings brought by a tribunal of inquiry for non-compliance of an order of the High Court granted pursuant to section 4 constituted a

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special category in which punitive sanctions are available in respect of civil contempt.^[25]

(2) Consultation Paper

(a) Section 1(2) of the 1921 Act

6.35     In the Consultation Paper, the Commission considered that paragraphs (a) to (c) of section 1(2) of the 1921 Act were useful and necessary provisions and should be retained.^[26] It then proceeded to examine paragraphs (d) and (e).

6.36     Paragraph (d) provides that where a person "by act or omission, obstructs or hinders the tribunal in the performance of its functions" that person shall be guilty of an offence. The Commission noted that in its Report on Contempt of Court,^[27] the Commission took the view that paragraph (d) was too broad in ambit and that it was furthermore an unwarranted interference with the freedom of expression on matters of public concern. Accordingly, in the Report on Contempt^[28] the Commission recommended the deletion of paragraph (d) and its replacement with a number of specific offences of disrupting a tribunal of inquiry (by means other than by publication.)^[29] The Commission also recommended that, if the decision were taken to retain the paragraph, then a mens rea requirement requiring intention or recklessness should be added to it.^[30]

6.37     The Commission in the Consultation Paper on Public Inquiries Including Tribunals of Inquiry did not agree with this recommendation. It was considered that any attempt to set out an exhaustive list of the ways in which the work of a tribunal of inquiry could be culpably interfered with was bound to fail.^[31] Furthermore, it was considered that it was necessary to provide some measure of

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protection to tribunals of inquiry in respect of matters written concerning them.^[32] The Commission recommended that that there was a very real need for such a provision, as tribunals of inquiry will often be investigating powerful interest groups with a vested interest in obstructing and hindering its work. In relation to the requirement of mens rea, the Commission considered that there was no need to provide for this expressly, as the mens rea is implicit in the offences. Accordingly, the retention of paragraph (d) in its existing form was recommended.^[33]

6.38     Paragraph (e) provides that if a person "fails, neglects or refuses to comply with the provisions of an order made by the tribunal" that person shall be guilty of an offence. In the Consultation Paper on Contempt of Court, the Commission noted that as with paragraph (d) paragraph (e) was too wide in nature and should be deleted and replaced with a number of specific offences of obstructing a tribunal of inquiry.^[34] The Report on Contempt of Court recommended that, if the decision were taken to retain the paragraph, then a mens rea requirement requiring intention or recklessness should be added to it.^[35]

6.39     However, in the Consultation Paper on Public Inquiries Including Tribunals of Inquiry, the Commission rejected the replacement of paragraph (e) with a series of general provisions with an exhaustive list of offences for the same reasons that it rejected the replacement of paragraph (d). The Commission considered that there was no good reason why the failure or refusal to obey a lawful order of a tribunal of inquiry should not constitute an offence. In relation to the requirement of mens rea, the Consultation Paper considered that there was no need to provide for this expressly, as the mens rea was implicit in the offences. Accordingly, the Commission recommended the retention of paragraph (e) in its existing form.^[36]

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6.40     Paragraph (f) provides a person shall be guilty of an offence if that person does or omits to do any thing, which would have been contempt of court if the tribunal of inquiry had been the High Court. The Consultation Paper noted that the Report on Contempt of Court had favoured the repeal of paragraph (f) on the ground that it was inappropriate that the law of contempt of court should be transplanted into the tribunals of inquiry legislation bearing in mind the fact that tribunals of inquiry are not courts and that they embody too different systems, namely the inquisitorial and the adversarial.^[37] The Commission concurred in this view. In addition, an overview of the law of contempt was conducted and the Commission concluded that an additional reason for not applying the law of contempt to tribunals was its uncertainty, even in its application to in the context of the administration of justice.^[38]

(3) Discussion

(a) Commissions of Investigation

(I) Offences

6.41     The Commissions of Investigation Act 2004 provides that it is an offence for a person:

• to disclose or publish any evidence given, or the contents of any document produced, in private save in very limited circumstances;^[39]

• to fail to attend before a commission of investigation on being summoned, in order to give evidence and to produce documents.^[40] It also provides that such behaviour may be punished as contempt. However, it states that an individual

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may not be prosecuted and found in contempt for the same offence;^[41]

• to make a statement, while giving evidence, which the person knows to be false or does not believe to be true;^[42]

• to obstruct an authorised person appointed by the commission;^[43]

• to destroy any document, or information in any form, relating to the matter or, matters under investigation; and ^[44]

• to disclose a draft or a portion of the draft report of a commission of investigation.^[45]

(II) Enforcement

6.42     The Commissions of Investigation Act 2004 provides a mechanism for the enforcement of orders of commissions established under that Act in three circumstances, first, in relation to orders in respect of witnesses and documents, second, in respect of orders relating to costs, and third, in relation, to determinations of privilege. This section will consider the first and the third category.

6.43     Section 16(6) of the 2004 Act deals with the powers of commissions of investigation in respect of witnesses and documents. It provides that where a person does not comply with a direction given by a commission pursuant to section 16, the High Court may, on application to it by the commission, order the person to comply with the direction and make any other order the High Court considers necessary and just to enable the direction to have full effect. Section 16(7) provides that if a person fails to comply with the order of the High Court, the matter may be dealt with as if it were contempt of the High Court.

6.44     Section 17 of the 2004 Act deals with privilege. It provides that where a person claims privilege in relation to any matter the

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commission may determine whether the person is so entitled, and where a commission determines that the person is not so entitled the person must disclose the information, including any relevant documents. Section 17(7) provides that if the person does not disclose the information the commission may apply to the High Court for an order directing the person to comply with the request and the High Court may make or refuse to make the order.

(b) United Kingdom

6.45     In the UK law relating to public inquiries is contained in the UK Inquiries Act 2005.

(I) Offences

6.46     Section 35 of the 2005 Act provides that a person shall be guilty of an offence if that person:

• fails to comply with an order made by the inquiry in relation to the taking of evidence;^[46]

• does anything that is intended to have the effect of distorting, altering or otherwise preventing any evidence, document or thing from being given, produced or provided to the inquiry;^[47]

• intentionally suppresses, conceals, alters or destroys any document which that person knows or believes to be a relevant document.^[48] (II) Enforcement

6.47     Section 36 of the UK 2005 Act provides that where a person fails to comply with, or acts in breach of, a notice under section 17 (a notice restricting public access to the proceedings of the inquiry) or section 19 (an order relating to the taking of evidence), the Chairperson of the Inquiry, or after the end of the inquiry, the Minister, may certify the matter to the High Court (England and Wales) or the Court of Session (Scotland.)^[49] Having heard representations on the matter the Court may then make an order

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imbuing the original order with the force it would have had if it had been an order of that court.^[50]

(4) Recommendation

(a) Offences of Obstructing or Hindering

6.48     The Commission considers that attempts to obstruct or hinder a tribunal in the course of its work should constitute a criminal offence. However, the Commission is not in favour of the establishment of an offence of contempt of a tribunal and therefore the retention of section 1(2)(a)-(e) of the 1921 Act is recommended.

6.49     The Commission recommends that the tribunals of inquiry legislation should continue to contain provisions equivalent to section 1(2)(a)-(e) of the 1921 Act which deal with attempts to obstruct or hinder a tribunal.

(b) Should there be an Offence of Disclosing or Publishing Confidential Material?

6.50     The Commission now turns to consider whether any further offences should be added to this list of offences. During the Consultation process it was pointed out that many tribunals of inquiry have problems with the leaking of confidential information to the media. Furthermore, despite repeated attempts by the tribunals and the Gardaí to establish the sources of these leaks this has not been possible due to a refusal on the part of the journalists concerned to disclose their sources. This refusal is of course based on the long established view of journalists expressed in the code of conduct of the National Union of Journalists (NUJ) that sources which themselves forward information on a confidential basis should have that confidentiality respected, a view which has some support in the decision of the European Court of Human Rights in Goodwin v United Kingdom ^[51] which held that in certain cases the right to freedom of expression in Article 10 of the European Convention on Human Rights protected the confidentiality of sources.^[52]

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6.51     Against this background it was suggested that it should be an offence to disclose or communicate or publish any Tribunal document or the contents of any such document, or other Tribunal information to any third person or party, except to the extent authorised in writing by the Tribunal.

6.52     The Commission agrees that the unauthorised disclosure of confidential information emanating from tribunals of inquiry is a very serious problem. A tribunal of inquiry could of course individualise documents so that if published the tribunal can clearly identify the source of the information. This would be of limited value in situations where journalists paraphrase the information in question.

6.53     Two issues must be considered in this respect, first, the question of how the unauthorised disclosure of information is currently dealt with, and secondly the proposal for the creation of a new criminal offence of disclosing, communicating or publishing confidential information emanating from the tribunal.

6.54     Section 1(2) of the Tribunals of Inquiry (Evidence) Act 1921 confers on tribunals of inquiry wide powers to deal with those who obstruct them. Of particular relevance in section 1(2)(d), which provides: "If a person… d. by act or omission, obstructs or hinders the tribunal in the performance of its functions, the person shall be guilty of an offence"

6.55     In Kiberd v Hamilton ^[53] the Court considered the applicability of section 1(2)(d) to the publication of confidential material emanating from a tribunal of inquiry. The respondent in this case was the chairman and sole member of a tribunal of inquiry into the beef processing industry. The first applicant was the editor of the Sunday Business Post and the second applicant was the author of two articles, which contained confidential information that had emanated from the tribunal. The respondent indicated that it was considering whether there had been a breach of section 1(2)(d) and (f) of the 1921 Act and made an order, pursuant to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 directing the applicants to

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appear before it in order to ascertain the source of the material. The applicants disputed the jurisdiction of the tribunal to make such an order but the Supreme Court held that it had. The decision in Kiberd indicates that the publication of confidential information emanating from the tribunal may in certain circumstances constitute an obstruction or hindrance of the tribunal in its work.

6.56     In addition, it remains open to a tribunal of inquiry to make an order that confidential information emanating from the tribunal should not be communicated, disclosed or published. Any breach of such an order would be an offence under section 1(2)(e) of the 1921 Act which provides that it is an offence where a person "fails neglects or refuses to comply with the provisions of an order made by the Tribunal."

6.57     In this context it remains to consider what a proposed new offence of disclosure of confidential information would add. It might be argued that such an offence is an attempt to remedy a perceived deficiency in section 1(2)(d) of the 1921 Act, namely that it does not expressly deal with the publication of confidential information emanating from the tribunal in all circumstances. But in light of Kiberd v Hamilton, ^[54] section 1(2)(d) already appears to cover acts of publication were these amount to a hindrance or obstruction of the tribunal. Therefore any proposed offence would appear to lower the threshold so that it would no longer be necessary to show that the publication causes an obstruction or hindrance and the mere fact of publication would be sufficient.

6.58     The Commission wishes to point out one possible outcome of the phrase "third person or party" in any proposed offence concerning the disclosure of confidential information. It is possible that this would make it an offence for the persons involved to communicate certain issues to their employers. For example, if a particular employee was involved in a tribunal of inquiry and the employer wished to investigate the matter either for internal purposes or in order to formulate its own evidence to the tribunal, the particular employee would be able to refuse to co-operate on the grounds that to do so would be an offence. For this reason and that the existing offence of obstruction or hindrance appears to cover this area, the

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Commission does not recommend that there should be a specific offence of publishing or disclosing confidential material.

6.59     The Commission does not recommend that there should be a specific offence of publishing or disclosing confidential material as it considers that the tribunals of inquiry legislation in dealing with obstruction or hindrance already caters for such offences.

(c) Enforcement

6.60     The Commission recommends that the existing power of a tribunal of inquiry to apply to the High Court for an order enforcing an order of the tribunal is a useful and a necessary one and should be retained in any amendment of the tribunals of inquiry legislation.

6.61     The Commission recommends that the tribunals of inquiry legislation should retain the power of a tribunal of inquiry to apply to the High Court for an order enforcing an order of the tribunal.

D Privileges

(1) The Present Law

6.62     The present position under section 1(3) of the 1921 Act is that persons who give evidence before tribunals of inquiry, or who are required to give evidence, enjoy the privileges and immunities of High Court witnesses.

(2) The Consultation Paper

6.63     In the Consultation Paper, the Commission recommended extending the privileges and immunities of those who give evidence to tribunals of inquiry to those who provide information, evidence, documents or other material to a tribunal, whether pursuant to an order or request of the tribunal or otherwise.^[55] However, the Commission stressed that these privileges and immunities would not extend to persons providing information, evidence or documents after they have been directed to cease doing so.^[56] The Commission advocated this course because it wished to encourage people to co-

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operate with the inquiry, and not to be dissuaded from coming forward for fear of civil or criminal prosecution.

(3) Recommendation

6.64     The Commission sees no reason to depart from this view in general terms, but subject to one proviso. In line with the recommendation concerning the privilege against self-incrimination ^[57] the Commission has concluded that this immunity should only apply in cases where the information, documents or material provided is used as "evidence."

6.65     The Commission recommends that the tribunals of inquiry legislation should continue to define the privileges and immunities of witnesses by reference to the privileges and immunities of witness in High Court proceedings.

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Note 1   See Chapter 5.     [Back]

Note 2   [1999] 3 IR 107.    [Back]

Note 3   See the Consultation Paper at paragraph 6.107.    [Back]

Note 4   See the Consultation Paper at paragraph 6.105.     [Back]

Note 5    [1999] 3 IR 101, at 132.     [Back]

Note 6   See the Consultation Paper at paragraph 6.86.    [Back]

Note 7   See the Consultation Paper at paragraph 6.87.     [Back]

Note 8   See the Consultation Paper at paragraph 6.105.     [Back]

Note 9   See the Consultation Paper at paragraph 6.107.     [Back]

Note 10   See the Consultation Paper at paragraph 6.108.     [Back]

Note 11   See the Consultation Paper at paragraph 6.88.     [Back]

Note 12   [1971] IR 217. See the Consultation Paper at paragraph 6.107.    [Back]

Note 13   Section 16(1)(a), (e) and (g) of the Commissions of Investigation Act 2004.    [Back]

Note 14   Section 16(1)(b) of the Commissions of Investigation Act 2004.    [Back]

Note 15   Section 16(1)(c) and (d) of the Commissions of Investigation Act 2004.     [Back]

Note 16   Section 16(1)(f) of the Commissions of Investigation Act 2004.     [Back]

Note 17   Section 16(1)(h) of the Commissions of Investigation Act 2004.     [Back]

Note 18   Section 19(1), and (2) of the Inquiries Act 2005.    [Back]

Note 19   Section 19(4) of the Inquiries Act 2005.    [Back]

Note 20   Section 19(3) of the Inquiries Act 2005    [Back]

Note 21   UK Inquiries Bill: Explanatory Notes at 12.     [Back]

Note 22   UK Inquiries Bill: Explanatory Notes at 13.     [Back]

Note 23    [2002] 3 IR 67.     [Back]

Note 24   SI No 15 of 1986 (as amended).    [Back]

Note 25    [2002] 3 IR 67 at 80.    [Back]

Note 26   See the Consultation Paper at paragraph 6.26.     [Back]

Note 27   (LRC 47-1994).    [Back]

Note 28   (LRC 47-1994).    [Back]

Note 29    (LRC 47-1994) at paragraph 9.6-9.7.    [Back]

Note 30   Ibid.    [Back]

Note 31   See the Consultation Paper at paragraph 6.27.    [Back]

Note 32   See the Consultation Paper at paragraph 6.28.    [Back]

Note 33   See the Consultation Paper at paragraph 6.30.     [Back]

Note 34   (LRC CP July 1991) at recommendation 66.     [Back]

Note 35   (LRC 47 1994) at paragraph 9.6-9.7     [Back]

Note 36   See the Consultation Paper at paragraph 6.32.     [Back]

Note 37   See the Report on Contempt of Court (LRC 47-1994) at paragraphs 9.2-9.3.    [Back]

Note 38   See the Consultation Paper at paragraph 6.37.    [Back]

Note 39   Section 11(3) of the 2004 Act. These are (a) where disclosure was directed by the court, (b) where disclosure is necessary for the purposes of section 12, (c) to the extent necessary for fair procedures, and (d) to a tribunal of inquiry, where a tribunal of inquiry is established, to inquire into the same matter.     [Back]

Note 40   Section 16(8) of the Commissions of Investigation Act 2004.    [Back]

Note 41   Section 16(9) of the Commissions of Investigation Act 2004.    [Back]

Note 42   Section 18 of the Commissions of Investigation Act 2004.    [Back]

Note 43   Section 30 of the Commissions of Investigation Act 2004.    [Back]

Note 44   Section 31(2) of the Commissions of Investigation Act 2004.    [Back]

Note 45   Section 37(2) of the Commissions of Investigation Act 2004.    [Back]

Note 46   Section 35(1) of the Inquiries Act 2005.    [Back]

Note 47   Section 35(2) of the Inquiries Act 2005.     [Back]

Note 48   Section 35(3) of the Inquiries Act 2005.     [Back]

Note 49   Section 36(1) of the Inquiries Act 2005.    [Back]

Note 50   Section 36(2) of the Inquiries Act 2005.    [Back]

Note 51   (1996) 22 EHRR 123.     [Back]

Note 52   For an overview of the issue of the journalists claim to confidentiality, see McGonagle, Media Law (2nd ed Thompson Round Hall 2003), at 189-193.    [Back]

Note 53   [1992] 2 IR 257.     [Back]

Note 54    [1982] 2 IR 257.     [Back]

Note 55   See the Consultation Paper at paragraph 6.120.    [Back]

Note 56   See the Consultation Paper at paragraph 6.120.    [Back]

Note 57   See paragraph 10.38 above.    [Back]