The Resurrection of Tribunals in Ireland? Some Preliminary Thoughts on the Disclosures Tribunal

Dr Laura Cahillane

Tribunals in Ireland have a long and controversial history. Many felt that with the passing of the Commissions of Investigation Act 2004, we had seen the end of tribunals in Ireland. While the new legislation allows for lower costs and speedier resolutions to investigations, the major difference between this procedure and a traditional tribunal of inquiry is that the latter is usually held in public. Holding the inquiry in public has advantages; there is more scope for cross-examination of witnesses and generally the tribunal can make stronger findings. But holding hearings in public also means potential adverse consequences on a person’s right to a good name and so parties whose rights may be affected are generally accorded the right to legal representation. This is when the costs mount up. Despite the controversy surrounding tribunals, public scepticism on their effectiveness, and fears as to the potential costs involved, the Government decided to appoint a tribunal to investigate the circumstances surrounding the smear campaign against whistleblower Sergeant Maurice McCabe. Of course, the Government had little choice in the matter after the McCabe family stated that it would not support a secret investigation and called for a public inquiry. Thus in 2017, Ireland begins its thirty fourth tribunal of inquiry.

The opening statement of the Disclosures Tribunal, as it has been officially called, was heard yesterday in Dublin Castle and already, Supreme Court Judge Mr Justice Peter Charleton, who is chairing the tribunal has set out a clear statement of intent. Charleton is well aware of the difficulties surrounding tribunals, having acted as Counsel at the Morris Tribunal, and it was apparent from his statement that he wishes to make a break with the past and conduct an efficient and effective inquiry.

Television camerascamera

The most obvious novelty at the opening of the inquiry yesterday was the presence of cameras. The Department of Justice had issued a statement last week, at the request of the Judge, specifying that cameras would be permitted during the reading of the opening statement but that filming would have to be ‘limited to a fixed position at the back of the room’, silent, and that flashes were not permitted. This was the first time television cameras had been allowed to film any proceedings of a tribunal and speculation is now rife that filming of witness statements and cross-examination may be permitted at a later date.

Of course the question of televising court or tribunal proceedings is, of itself, controversial. I have written about this previously here but the fundamental danger involved is when proceedings turn into a spectacle with witnesses and barristers playing up for the entertainment of viewers. Others argue that there would be no point in televising legal proceedings as they are generally too tedious for the general public. Naturally, the other side of the argument is that the Constitution requires justice to be administered in public and while court proceedings are held in public, it is not possible for many people to access these, whereas television provides unlimited access. Indeed, over 20 years ago, the Law Reform Commission, in a report on contempt of Court, commented on televising court proceedings: ‘We recognise that there may be a significant public benefit to be gained from exposing the detailed workings of the administration of justice in the courts to everyone within reach of a television set, thereby lessening, as one would hope, the remoteness of court proceedings from the general public and the sense of alienation which many feel from that process.’ The same arguments all apply to televising proceedings of a tribunal; there are dangers involved but also significant advantages, particularly where the mission is one of finding and establishing the truth.

There has been no indication as of yet from Charleton regarding any further filming of proceedings but even the decision to film the opening statement sends a message of intent, which was further bolstered by statements made by Charleton in his speech.

In setting out how the Tribunal will go about its work, Charleton impressed with his clarity and determination. He stated that the basic touchstone is ‘fairness and balance’ and specified that ‘there are no pre-conceived notions in this tribunal as to who is a villain and who is a victim, if there are such’. He also pointed out that the Tribunal is ‘a drain on the resources of the Irish people’ and stressed that ‘[e]very lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason.’ He also intimated that he will not entertain obfuscation in the cross-examination of witnesses, calling for focus and examination on what is important. After setting out the terms of reference, along with his hope that the truth will be victorious, he called on anyone with information on the matter to come forward and cooperate with the tribunal.

Legal representation

He made some interesting statements regarding legal representation which are relevant in the context of costs and delay – two traditional criticisms of tribunals of inquiry. He noted that the entitlement to be represented ‘will be afforded to everyone whose reputation is in any reasonable sense likely to be adversely affected by the report of the tribunal’. This, of barristercourse, is no less than what is required by Constitutional justice and he also set out that represented persons will be entitled to other rights such as copies of the evidence and cross-examination etc, all of which have been well-established since the case of Re Haughey [1971] IR 217. He also noted however, that legal representation should be ‘tailored with regard to the level of representation and as to attendance, based on how central the represented person is reasonably thought to be.’ Later in the statement he makes the point that he is entitled to disbelieve a witness or disagree with an expert opinion without those persons having representation and towards the end of the statement he explains that applications for representation are not to be made yet since it is still unclear whose reputation may be put in jeopardy. All of this seems to suggest that the right to representation, which is not absolute and only granted in certain circumstances, will be restricted to those for whom it is essential in order to uphold their right to a good name and parties who will not be affected will not  be granted this right. Presumably, this is all in the attempt to secure a timely resolution and to keep costs down.

Privilege

In a further effort to offset delays to the inquiry, Charleton referenced the fact that the rights of parties to a tribunal are now well established as a result of a number of judicial review applications taken during previous tribunals. While acknowledging the right of access to the courts, he stressed that there should be no further need for judicial reviews and if anyone has a problem, they should apply to the tribunal. However, one issue which could potentially cause delay if taken further, is the question raised by Charleton in relation to journalistic privilege.

In the statement, he asked whether there exists a journalistic privilege and whether it attaches to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is ‘perhaps solely motivated by detraction or calumny’ or if the source was ‘using the media as an instrument of naked deceit’. He stated that the tribunal had ‘no settled view on the matter’ and would carefully consider submissions. He also pointed out that the existing law suggested that the privilege is that of the confidential informant and not the journalist, suggesting perhaps that this issue could be avoided if the informants were willing to come forward directly to the tribunal. Given the number of journalists who may have to appear before the Tribunal, it is very likely that a ruling will be necessary on this issue.charleton

Part of Charleton’s statement on the issue of privilege may also prove to be decisive for Commissioner Nóirín O’Sullivan, who has declined to comment on how she instructed her lawyers for the O’Higgins investigation. The Commissioner has relied on lawyer-client privilege in refusing to comment but as Charleton pointed out, it is the client who holds the privilege and therefore can waive that privilege. This suggests that the privilege will not be an appropriate stone to hide behind.

Notes of Optimism

Four years after journalist Michael Clifford wrote that the publication of the Mahon report had ended the era of tribunals (see here) we are faced with yet another such inquiry. However, the early indications are that this Tribunal may avoid some of the past problems. Mr Justice Charleton has been very clear that he intends to abide by the schedule given and produce a timely report. It remains to be seen whether the issues around privilege will cause delay but for the moment, the mood is optimistic and Charleton has set a positive tone; stressing that the purpose of the tribunal is to establish the truth, he recited an apt ancient Irish motto: ‘Glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar — purity of heart, strength, and adherence to our word.

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