BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. In these Judicial Review proceedings the Applicant seeks a number of declaratory reliefs arising from a proceeding taking place before the Respondent (The President of the District Court) pursuant to section 51 of the Criminal Justice Act, 1994. Leave to issue Judicial Review proceedings was granted by McCracken J., on the 1st of May 1998.

2. In February 1998, the Minister for Justice received from Patrick Fievet Premier Juge D’Instruction of the Tribunal De Grand Instance de Paris, a request for assistance in respect of certain enquiries being conducted by him into charges of laundering sums of money deriving from drug trafficking, partaking in international financial operations related to drug trafficking, complicity and illegal possession and other charges under the Code of Penal Procedure of the French Republic. The Minister set in train the procedure set up under section 51 of the Criminal Justice Act, 1994 and nominated the President of the District Court to take evidence pursuant to that Act from the Applicant, Mr. Carlos Salinas de Gortari. The Applicant is the former President of the Republic of Mexico and is at present resident in this jurisdiction. Prior to the issuing of his request to the Minister, M. Fievet had been in correspondence with the Applicant in regard to his giving evidence concerning the matters under investigation. While the Applicant had been unwilling to travel to France to give evidence, he had readily agreed to give evidence in this jurisdiction. In a letter to M. Fievet dated the 4th of December 1997 the Applicant had stated:

3. In a later letter dated the 21st of December 1997 the Applicant stated:

4. In a letter dated the 22nd of January 1998 the Applicant wrote that he gladly accepted M. Fievet’s proposal to hear him testify in Ireland in the early days of March 1998.

5. The matter came on before the Respondent on the 4th, 5th and 6th of March 1998 and the Applicant appeared before him as a witness duly sworn. The proceedings were also attended by the Juge D’Instruction, M. Fievet. The Applicant was represented by Solicitor and Counsel. The Applicant answered a very considerable number of the questions put to him by the Respondent but there were a number of questions put to him which he refused to answer in reliance, he claimed, on his right to silence. These questions dealt in the main with three areas:-

6. The Applicant expressly claimed that his refusal to answer these questions arose from a desire to maintain his privacy and confidentiality in relation to his personal financial affairs. He did not put forward any grounds for believing that by answering the questions he would tend to incriminate himself, either in this State or in France. In regard to the possibility of the Applicant being prosecuted in France, M. Fievet stated at the District Court hearing on the 5th of March 1998 that a witness against whom serious and concomitant elements of guilt should appear or exist cannot be heard as a witness by the investigating Magistrate. This would cause the proceeding to be a nullity. In that case, a witness against whom such elements of guilt or presumed guilt would exist could not be heard by the investigating Magistrate unless he had been charged prior to this hearing, which was in no way the case. I understand this to mean that the very fact that the investigating Magistrate, or Juge D’Instruction, was questioning the Applicant as a witness meant that he was not a suspect since if he was a suspect he would have to be charged before being questioned. Failure to obey these rules would render the whole proceeding a nullity.

7. Very considerable legal argument followed in the District Court as to whether the Applicant had a right to refuse to answer the questions or not. Eventually, the learned President of the District Court ruled that the Applicant was obliged to answer the questions. Upon the Applicant again refusing to do so, the Respondent was about to proceed to hold him in contempt and to deal with that situation. However, the Applicant applied for the proceedings to be adjourned to enable the present Judicial Review proceedings to be brought. Counsel for the State did not oppose this application. The Respondent accordingly adjourned the proceedings and the Applicant issued his Judicial Review proceedings on the 1st of May 1998.

8. A preliminary issue arose as to whether these Judicial Review proceedings should be held in camera; this issue was argued before Geoghegan J., who, in a reserved judgment given on the 31st of July 1998, held that the Judicial Review proceedings must be held in public. The decision of Geoghegan J., was subsequently upheld by the Supreme Court. The substantive Judicial Review proceedings came on for hearing before this Court on the 17th of November 1999.

9. The Applicant in these proceedings seeks a number of declaratory reliefs as follows:-

10. The grounds upon which he seeks relief are set out in his originating statement. A comprehensive statement of opposition was filed by the Notice Party, the Minister for Justice, on the 23rd of June 1998.

11. The procedure which is in issue in these proceedings is governed by section 51 of the Criminal Justice Act, 1994 and by the second schedule to that Act. Section 51, where relevant, provides as follows:-

12. It is common case that the procedure under section 51 of the 1994 Act, is not “the administration of justice” as referred to in Article 34 of the Constitution.

13. Senior Counsel for the Applicant, Mr. Clarke, put forward three main grounds for the reliefs sought by the Applicant. He accepted that the procedure under Article 51 was a proper one given the nature of the request for legal assistance made by the Premier Juge D’Instruction; this request fell within the parameters section 51(1) and (2) of the 1994 Act, and the Minister had acted correctly in nominating the President of the District Court to receive the evidence and give effect to the request. However, he drew attention to the differences between criminal investigation procedure under the French (Civil Code) legal system and those which obtained in this (Common Law) jurisdiction. The investigation being carried out by the Premier Juge D’Instruction, M. Fievet, was at a comparatively early stage; no charges had yet been brought. It was, Mr. Clarke submitted, comparable to the stage in this jurisdiction where the police are interviewing possible witnesses, or indeed suspects, during the course of a preliminary investigation and prior to charging any person with an offence. This could be either by voluntary interviews or under section 4 of the Criminal Justice Act, 1984. Such interviews would be governed by the Judges’ Rules and/or the regulations governing the treatment of persons in custody made under the Criminal Justice Act, 1984. Persons questioned during this type of investigation would have a general right to silence except where there were specific statutory exceptions, for example under the Offences Against the State Act and under legislation regarding drug related offences. Counsel submitted that in the Applicant’s case, when the investigation was at this preliminary stage, and given that the Applicant was not an accused person but simply a potential witness in the proposed French criminal proceedings, the Applicant should have the same general right to silence as would a person being interviewed by the police in an interview governed by the Judges’ Rules in this jurisdiction. This, he said, would accord with Rule 3(1)(a) of the Second Schedule which provided that a person should not be compelled to give any evidence which he could not be compelled to give in a criminal proceedings in the State. Rule 3(1)(a) of the Second Schedule should be interpreted as giving a right to silence, or privilege against self-incrimination, which varied in accordance with the stage reached by the particular criminal investigation in relation to which the request for assistance was made by the foreign court or authority. Since the enquiry in the present case was at a preliminary stage, the Applicant had a general right to refuse to answer any question if he so chose. The procedure under section 51 was not equivalent to a criminal trial or even to the taking of depositions in the District Court. Secondly, Mr. Clarke submitted that even if the Applicant had not a general right to silence he must have a general privilege against self-incrimination whether as regards possible criminal proceedings in this State or possible criminal proceedings in France. This was relevant to the relief sought at paragraph 3 of the Applicant’s Notice of Motion. Counsel stressed that if the Applicant was an accused in a criminal trial he would not be required to give any evidence at all, let alone self-incriminating evidence. Here he was merely a witness and must be given the privilege against self-incrimination which would be given to any witness. Rule 3 in the Second Schedule provided a double test in Sub-rule 3(1) (a) and Sub-rule (3) where, as in the present case, the claim of privilege was not conceded by the Foreign court or authority.

14. Thirdly, Counsel for the Applicant submitted that there was no express provision for compelling a witness to answer questions contained either in section 51 of the 1994 Act or in the Second Schedule. No offence of refusing to answer a question was created; no penalty for refusing to answer prescribed. Rule 1 of the Second Schedule gave to the judge powers for “securing the attendance of a witness for the purpose of the proceedings” but went no further. It was clear that at the conclusion of the proceedings in the District Court on the 6th of March 1998 the President of the District Court had intended to proceed by way of holding that the Applicant was in contempt and imposing a penal sanction. The imposition of penal sanctions, however, required specific and clear authority in a procedure such as that under section 51 which was governed by statute. This was emphatically not the administration of justice under the Common Law. Nor could the matter be dealt with under the Petty Sessions (Ireland) Act, 1851, section 13. That section gave the District Court powers to find an uncooperative witness in contempt and to sentence him or her to specific periods of imprisonment, but it could not simply be imported by means of strained statutory interpretation into a completely different procedure under section 51 of the 1994 Act.

15. Counsel for the Notice Party, Mr. Sreenan, submitted that the procedure set up by section 51 of the Criminal Justice Act, 1994 was a statutory procedure, clearly set out and defined by the terms of the statute. It was sui generis , and not to be compared either with police investigation prior to charge, or with an actual criminal trial. It was clear that the Second Schedule provided a self-contained code for the implementation of a request under section 51. Clearly the statute, including the Second Schedule, must be given a purposive construction. There would be little benefit in enacting the provisions regarding the existence of a privilege against self-incrimination if, in fact, a witness could refuse to answer any question at all even if no question of self-incrimination arose. It was clear that paragraph 3(1) (a) of the Second Schedule was dealing with a situation where there would be a privilege against self-incrimination in the State. The Applicant did not have a further right not to answer any question which would disclose matters private to him. Mr. Sreenan argued that there was a clear codification of privilege set out in the Second Schedule of the 1994 Act. The genesis of the Judges’ Rules was a Home Office circular issued some eighty years ago for the purpose of ensuring that the policemen were not over zealous or unfair in their dealings with the public and there was no basis in law for suggesting that these Rules could supersede the provisions of the 1994 Act.

16. Mr. Sreenan drew attention to the long title of the 1994 Act which described it inter alia as an Act “to make provision for international co-operation in respect of certain criminal law enforcement procedures”. He submitted that there was little point in enacting section 51 and the Second Schedule if the person summoned to give evidence could simply refuse to answer any question at will. It was clear that the scheme of the Act envisaged questions being asked in relation to which there was an obligation to answer.

17. With regard to the question of self-incrimination, Counsel for the Notice Party accepted that Rule 3(1) (a) of the Second Schedule was dealing with a situation where there would be a privilege against self-incrimination in the State. However, he pointed out that the Applicant had not claimed the privilege against self-incrimination and had not brought any evidence before either the District Court or this court to ground such a claim. He referred to Re Westinghouse Electric Corporation (No 2) [1997] 3 All ER 717 and submitted that it was for the Applicant to satisfy the President of the District Court that he had reasonable grounds for claiming the privilege against self-incrimination. He had not yet attempted to do so and the relief claimed at paragraph (3) of his Notice of Motion was a moot. He had, in any case, been informed by the Juge D’Instruction, M. Fievet, that he could not be questioned as a suspect by him without previously being charged with an offence, and that any attempt to do so would render the whole procedure null and void.

18. With regard to the Applicant’s argument that there was no provision for the compelling of answers either in section 51 or in the Schedule, Mr. Sreenan submitted that Rule 1 of the Schedule should be given a purposive construction and would imply powers in the judge of the District Court for the compelling of answers, powers such as those set out in section 13 of the Petty Sessions (Ireland) Act, 1851. To give the judge power to enforce the attendance of witnesses would be meaningless if there was no power to compel answers, thus giving the witness a total right to silence. In the context of the purposive interpretation of the 1994 Act Mr. Sreenan referred to Bennion’s “Statutory Interpretation” [Second Edition] Part XX where in section 304 it is stated that a purposive construction of an enactment is one “which gives effect to the legislative purpose by...applying a strained meaning where the literal meaning is not in accordance with the legislative purpose”. Mr. Sreenan submitted that this should be the approach to be taken by this court to the interpretation of the 1994 statute.

19. Firstly, it is necessary to keep in mind that the proceedings before the Respondent in the District Court under section 51 of the 1994 Act were not a trial and were not the administration of justice. Secondly, Mr. Salinas de Gortari is not an accused person, either in this jurisdiction or in France.

20. The procedure in question is indeed, as submitted by Mr. Sreenan, sui generis . It is not, I think, valid to compare it either with an actual trial or with the 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 section 51 procedure is a procedure governed by statute and must be considered within the bounds of that statute. The rights of the Applicant are the rights of a witness, not of an accused, and his position cannot be compared to that of an accused person at a trial who is under no compulsion to give evidence at all. His position is much closer to that of the Defendant in the case of Keegan -v- De Burca [1973] I.R. 223, which was opened to me by Counsel in the course of argument, but even that case deals with the Common Law applied in the context of the High Court, whereas in the instant case the question is of a specific statutory procedure in the context of the District Court.

21. While I appreciate that the Civil Code system as applied in the criminal law of France differs in many ways from the procedures of the criminal law in this jurisdiction, I do not accept that as a result the statutory procedure set out in the 1994 Act can in this case be equated with investigation and questioning carried out by the Garda Siochana under the Criminal Justice Act, 1984 nor indeed to a Garda investigation governed by the Judges’ Rules. The Judges’ Rules, as pointed out by Counsel for the Minister for Justice, were designed to control investigations carried out by the police and cannot be imported by implication into a statutory procedure laid down by the Oireachtas where a witness is being examined under oath by a judge of the District Court, in this case by the learned President of the District Court.

22. The long title of the Criminal Justice Act, 1994 provides that it is an Act

23. Rule 3 provides certain safeguards for a witness taking part in this procedure. The Applicant seeks to graft onto this scheme a general right to silence, a right in effect to refuse to answer any question. The question of the right to silence of an accused person has been fully discussed by the Supreme Court in Heaney -v- Ireland [1996] 1 I.R. 580. Here we are dealing with the rights of a witness who, under the Common Law, would be obliged to answer a question save for the safeguard of the privilege against self-incrimination. The general rule, therefore, is that a witness is obliged to answer a question put unless he or she can establish that there are reasonable grounds to fear that the answer will tend to incriminate him or her. The position is even more clear under the section 51 procedure where explicit provision for the privilege of witnesses is made.

24. I have no doubt that the Oireachtas intended the witness under the section 51 procedure to be compellable both in the sense of attending the proceedings and in the sense of answering the questions put and the 1994 Act should be interpreted insofar as possible to fulfil that purpose. That is not, however, the end of the matter. Mr. Clarke points out that there is no provision in the Act creating an offence of failure to answer questions, nor is any penalty provided for such an offence. Mr. Sreenan suggests that Rule 1 grants wide powers which would include powers analogous to those set out in the Petty Sessions (Ireland) Act section 13. That section deals with the situation where a witness deliberately refuses to answer a relevant question and provides as follows:-

25. Mr. Sreenan submits that to carry over the terms of section 13 of the Petty Sessions (Ireland) Act 1851 into the 1994 Act would be to interpret the statute in a purposive manner and that this would carry out the intentions of the Oireachtas.

26. As I have already said, I have no doubt that the intention of the Oireachtas was that a witness appearing before the nominated judge of the District Court under this statutory scheme should be compelled to answer the questions put to him save in the exceptional circumstances set out in Rule 3. However, no explicit provision has been made either to create an offence or to provide a penalty in the event of failure to answer. Mr. Sreenan argues that these lacunae may be overcome through the purposive interpretation of the statute. This court has previously accepted the principle of purposive interpretation (see for example Quinlivan -v- the Governor of Portlaoise Prison [1998] 2 IR 113 and Mullins -v- District Judge William Harnett and Others [1998] 2 ILRM 304), but the principle that any statute which imposes or may impose penal sanctions must be strictly interpreted is also well established. This latter principle must always have high priority in the interpretation of any statute.

27. Rule 1 of the Second Schedule provides that the judge shall have the like powers for securing the attendance of a witness as the District Court has for the purpose of any other proceedings before that court. This may be equated with the first Rule set out in section 13 of the Petty Sessions (Ireland) Act 1851. It is notable however, that in that section separate and distinct provision is made under Rule 5 for the situation where a witness actually present in court refuses to answer a question. That situation is not covered by the general provision on compelling the attendance of a witness. Rule 1 of section 13 deals with compelling attendance; Rule 5 deals with compelling a witness to answer. It seems to me, therefore, that in the statutory scheme set out in section 51 of the 1994 Act Rule 1 of the Second Schedule cannot of itself be held to import a serious criminal offence and a concomitant penal sanction where no specific provision is made for either such offence or such sanction in the Act itself or in the Schedule.

28. Can, however, Rule 5 of section 13 of the Petty Sessions (Ireland) Act, 1851 itself supply the necessary power in the District Court to compel the Applicant to provide answers to the questions in issue? At first glance, Rule 5 may appear to apply to any situation where a witness appears before the District Court - “whenever any person shall appear as a witness, either in obedience to a summons or by virtue of a warrant....”. However, Rule 5, in common with the other Rules contained in section 13, is governed by the opening paragraph of the section - “whenever it shall be made to appear to any justice that any person....is able to give material evidence for the prosecution in cases of indictable offences or for the Complainant or Defendant in cases of summary jurisdiction, and will not voluntarily appear for the purpose of being examined as a witness, such justice may proceed as follows” . Rule 5 is an integral part of the manner in which the judge of the District Court may proceed; it does not stand on its own. Thus the procedures set out in section 13 are those which apply in criminal proceedings in the District Court and not otherwise. It is accepted by all parties in the instant case that the procedure which took place before the learned President of the District Court involving the Applicant is not the administration of justice; still less is it a criminal procedure. It is accepted by all, including the Juge D’Instruction, M. Fievet, that Mr. Salinas de Gortari is not an accused person.

29. Despite my acceptance of the probability that the Oireachtas intended that under section 51 of the 1994 Act a witness should be compellable in all senses, it would, in my opinion, be carrying the principle of purposive interpretation too far if this court were to accept the importation of Rule 5 of section 13 of the 1851 Act into the 1994 Act in order to fill what appears to be a lacuna in the Act. Had the Oireachtas so wished, it would have been comparatively simple to add the words “ or for requiring the witness to give evidence ” at the appropriate point in Rule 1 of the Second Schedule.

30. The District Court is itself a court of limited jurisdiction established by law under Article 34 of the Constitution. Its powers are delimited by statute and by statutory rules; it does not have the inherent powers of this court or of the Supreme Court. Thus, while the learned President of the District Court was correct in deciding that under the procedures set out in the 1994 Act the Applicant must answer the questions put to him by the court, his powers under the statute do not extend to a finding that the Applicant has committed the offence of criminal contempt, or to the imposition of a penal sanction for such an offence.

31. This, clearly, is a highly unsatisfactory situation. However, this does not mean that this court should legislate to fill gaps left by the legislature.

32. The learned judge also refers to Cox -v- Hakes [1890] 15 AC 506 where Lord Herschell stated at page 528:-

33. The learned Denham J., concludes:-

34. While, therefore, it is open to the court to interpret legislation in a purposive fashion, it seems to me that the addition of both an offence and a penal sanction would be to

35. In his written submissions to this court Counsel for the Minister for Justice suggests that one option open to a nominated judge or perhaps to the Minister for Justice in his capacity as the person responsible for implementing section 51 would be to apply to the High Court for a declaration that a particular individual who has appeared before a nominated judge is obliged to answer a particular question or series of questions. Mr. Sreenan argues that the fact that such a jurisdiction clearly must exist in the High Court answers any claim that there is no procedure under which an individual can be compelled to answer a question posed by a judge appointed pursuant to section 51.

36. It may well be that such a course of action could provide a solution, albeit complex, to the present unsatisfactory situation. However, this aspect of the matter was not fully argued before me and in those circumstances I feel it would be improper to reach a considered decision on the matter.

37. I turn now to the reliefs sought by the Applicant. Since I have held that the purpose and intention of section 51 of the Criminal Justice Act, 1994 is that the Applicant should in general terms be compelled to answer questions put to him and that he has not a general right to silence, I must refuse the declaration sought under paragraph 1 of the Applicant’s Notice of Motion. With regard to the second and third declarations sought, Rule 3(1)(a) of the Second Schedule of the 1994 Act would clearly cover the situation where the Applicant’s answer to a particular question would tend to incriminate him in this State. The matter of a claim of privilege against self-incrimination was succinctly dealt with by Lord Denning MR in Re. Westinghouse Electric Corporation (No 2) [1997] 3 R.E.R. at page 721 as follows:-

38. It is clear from this that if the Applicant in the instant case was able to establish some realistic prospect or possibility of his being proceeded against in this jurisdiction as a consequence of answers he might give to the questions posed by the Respondent, he would be entitled to claim (as he would in criminal proceedings in this State) a right not to answer the questions as a consequence of the existence of the Common Law privilege against self-incrimination. However, it is clear that in order to invoke this protection he would, as a witness under oath, have to satisfy the Respondent that there was reasonable ground for a belief that his answer could be used against him in criminal proceedings. In point of fact, the Applicant has to date put forward no evidence, either in the District Court or in this court on Affidavit, of grounds for a claim that his potential answers would tend to incriminate him either in this State or in France. The Respondent has therefore not as yet been enabled to rule on the reasonableness or otherwise of any such grounds. It would not be proper in Judicial Review proceedings for this court to lay down rules in advance to govern the exercise of the Respondent’s jurisdiction in this matter. I therefore refuse the reliefs sought as paragraphs 2 and 3 of the Applicant’s Notice of Motion. It follows that the relief sought in paragraph 4 must also be refused.