HC 271/04
THE HIGH COURT
JUDICIAL REVIEW
[2004 No. 324 J.R.]
BETWEEN
OWEN O’CALLAGHAN
APPLICANT
AND
JUDGE ALAN MAHON, JUDGE MARY FAHERTY 
AND JUDGE GERALD KEYS 
MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
RESPONDENTS
AND TOM GILMARTIN
NOTICE PARTY
JUDGMENT of O’Neill J. delivered the 7th July , 2004.
By order of Mr. Justice White made the 1st April, 2004 the applicant was given leave to apply for Judicial Review and specifically for a declaration that the refusal by the respondents to permit the applicant through his legal representatives access to documents recording prior oral and written statements by the notice party to the Tribunal of Inquiry into certain planning matters and payments for the purposes of cross-examining the notice party, amounts to a failure by the respondents to observe and protect the applicant’s right to fair procedures and natural and constitutional justice and also an order of certiorari quashing the decision of the respondents made on the 24th March, 2004 whereby the respondents refused the application on behalf of the applicant for access to the documentary records of prior written and oral statements made by the notice party to the respondents.

BACKGROUND
The respondents are members of a Tribunal (hereinafter referred to as the “Tribunal”) originally established in October of 1997 to investigate the planning history of lands in North County Dublin.  In June of 1998 the terms of reference of the Tribunal were widened to empower and enable the Tribunal to investigate all improper payments made to politicians in connection with the planning process.  
The applicant is a property developer and carries out that activity through a number of companies of which he is a director.  He has interests in Cork, Dublin and in the United Kingdom.  He is now aged 63 years of age, is a married man with two children.  His involvement with the Tribunal arises out of his acquisition through a company known as Barkhill Limited, of an interest in what became known as the Quarryvale site in West Dublin which is now the site of the Liffey Valley Shopping Centre.  All of this, for the applicant, began in October of 1987 when he acquired lands at Neilstown/Balgaddy which was at that time in the process of being purchased by Albert Gubay from Dublin County Council through a company known as Merrygrove Limited.  The site in question had been identified as a planned town centre and was so zoned in the 1983 Dublin County Development Plan.  By an agreement made on 31st January, 1989 the notice party agreed to purchase the applicant’s interest in this site for a sum of IR£3.5 million to be paid by instalments.  In due course the applicant acquired an interest in the company known as Barkhill Limited which was the company being used by the notice party to acquire the Quarryvale lands.  Thereafter it would appear that the applicant and the notice party proceeded to develop the Quarryvale site but in 1996 parted company with the notice party being bought out of the project for a payment of IR£7.76 million.
The notice party has made allegations concerning these transactions which are inter alia now the subject matter of an investigation being carried out by the Tribunal.  The Tribunal determined to proceed to public inquiry in relation to these matters in two modules.  The first concerning the period 1987 to 1990 and the second the period thereafter.  
Under cover of a letter of 26th January, 2004 the Tribunal circulated a “brief” to parties interested in the module concerning 1987 to 1990, including the applicant.  The brief in question contained in excess of 3,200 pages with statements from the interested parties together with relevant documentation.  The only allegations made against the applicant were contained in the statement of the notice party dated the 25th May, 2001.  This is a lengthy statement much of which is redacted as it concerns matters which will be dealt with in the second module.  In this statement the only allegations made by the notice party concerning the applicant concerned his connections with politicians, suggesting that Liam Lawlor TD advised the notice party that it was essential that the notice party deal with the applicant as the applicant owned the Neilstown site which had the appropriate zoning.  It was further suggest that the applicant was present in Buswells Hotel when a demand was made of the notice party for £100,000 by a named councillor.  
The notice party was called as the first Tribunal witness in this module.  During the course of his evidence he made a series of allegations concerning the conduct of the applicant which had not been mentioned in the statement of May 2001, which had been circulated.  
During the course of cross-examination of the notice party by counsel for An Taoiseach it emerged that the notice party, in addition to the written statement which had been circulated, had provided other written and oral material which was recorded by the Tribunal.  This material had not been circulated to the applicant or anyone else.
In further cross-examination of the notice party the notice party accepted that there may have been inconsistencies between this other material and his oral evidence and statement as circulated.  He also said in his evidence that he had told the Tribunal of the allegations made in his oral evidence but not included in a statement of 25th May, 2001.  
Following on this passage of cross-examination the solicitors for the applicant wrote to the Tribunal by letter of 18th March, 2004 requesting that the other written and recorded statements of the notice party which had not hitherto been circulated, be provided to the applicant for the purposes of the cross-examination of the notice party by counsel for the applicant. 
On the 24th March, 2004 the Tribunal ruled on the application for access to these documents and refused that application.  The ruling was in the following terms:-
“CHAIRMAN:
I will now read the ruling of the Tribunal.  This ruling is in response to requests made by a number of parties to whom representation has been granted that the Tribunal should release to them all information statements or other documents or information provided to the Tribunal by Mr. Gilmartin and the same be circulated to the interested parties so as to enable Mr. Gilmartin to be cross-examined in relation thereto.  In accordance with its established procedure, the Tribunal has in advance of Mr. Gilmartin’s evidence already circulated to such parties Mr. Gilmartin’s narrative statement of the facts upon which the Tribunal has determined that a public inquiry is merited.
In addition to this statement the Tribunal has further documentation which includes details of communications between Mr. Gilmartin and his solicitors and members of the Tribunal’s legal team.  In addition, the Tribunal has been provided with a document prepared following the question and answering interview between Mr. Noel Smyth, a solicitor then acting on behalf of Mr. Gilmartin, and Mr. Gilmartin.  This document was provided to the Tribunal by Mr. Smyth at the request of Mr. Gilmartin in 1998.
The Tribunal legal team was neither present at this interview nor instrumental in the preparation of the record of such interview.  The document was provided to the Tribunal upon express terms as to confidentiality which would be set out in detail later in this ruling.  
The general issue of the confidentiality of documentation and information furnished to the Tribunal in the course of its inquiries, has already been ruled upon and explained in detail in the Tribunal’s initial ruling on confidentiality delivered at the commencement of the Tribunal on 14th January, 1998 and has been elaborated upon in subsequent rulings of the Tribunal, including those delivered on 20th January, 1999, 20th November, 2002 and 4th February, 2003.  
The Tribunal recognises that it has a duty of confidentiality to persons from whom it has received documents or information in confidence.  Documents will only be circulated where the Tribunal determined that they are relevant, admissible and probative.  Save in exceptional circumstances, the Tribunal will not circulate documents or information where such documents or information was provided to the Tribunal upon specific terms or conditions or limitations imposed or agreed at the time that the documentation or information was furnished to the Tribunal.  
The Tribunal remains at all times the appropriate authority to decide what documentation is relevant admissible and/or probative in its proceedings, and in particular to decide whether any exceptional circumstances exist such as to warrant a departure from the established rules of confidentiality in any particular instance.
The documents now sought to be considered fall into two categories.  Firstly those prepared in the course of the private investigative stage of the inquiry by members of the Tribunals legal team following interview or contact with Mr. Gilmartin and secondly, the documents provided by Mr. Gilmartin’s then solicitor Mr. Smyth to the Tribunal.
The Tribunal has determined that the first category of documents remain confidential to the Tribunal and have ruled that they will not be circulated.  The Tribunal is satisfied that there are no exceptional circumstances in existence which merit a departure from the Tribunal’s established procedure.  
In relation to the second category of documents the Tribunal notes that this documentation was provided to the Tribunal upon specific terms set out by Mr. Gilmartin’s then solicitor and are quoted verbatim as follows:
‘1.	It is a draft preliminary statement that may be subject to changes, amendments and or correction.  Tom Gilmartin is furnishing same as an aid to the Tribunal without giving any commitment in respect of confirming or ratifying same.  
2.	Tom Gilmartin reserves the right to make any amendments, corrections or changes and/or to withdraw any allegations set out therein which he may in his sole and absolute discretion based on further inquiries he is making, consider fit.  He wishes to check and recheck a number of issues and to try and find documentation in respect of various issues, some which he believes may have been destroyed or lost.
3.	He is relying upon the various assurances given to him.  Please treat this on this basis and on the basis that same is furnished on a strictly private and confidential basis without being disclosed to any third party.’
The Tribunal is satisfied having reviewed the circumstances in which this second category of documentation was furnished to the Tribunal, that it is subject to specific assurances on confidentiality and non-disclosure by the Tribunal.  The Tribunal does not at this time consider that there are circumstances which merit or which allow for a departure from the terms upon which the documentation was provided to the Tribunal, and accordingly, refuses the application for its circulation.  
The Tribunal is mindful of the fact that it is essential for the efficacy the Tribunal’s investigation that it has the capacity to treat documentation provided to it in confidence on a strictly confidential basis.  Without such capacity, persons providing information to the Tribunal would undoubtedly be persuaded from providing information which is necessary to the Tribunal to carry out its task.  The conduct of private interviews by members of the Tribunal’s legal team, with potential witnesses, and the receipt of information and documentation of a strictly confidential basis are part and parcel of the investigative and information gathering process with which the Tribunal is charged.  It is only in exceptional circumstances that the Tribunal would consider departing from this established practice.”

Following upon this ruling the applicant then applied to this court on the 1st April, and obtained the relief granted in the order of Mr. Justice White.

SUBMISSIONS
For the applicant it was submitted by Mr. Sreenan S.C. as follows:
1.	That the applicant has a right to defend his good name and that under Article 40.3.2 of the Constitution, the State has a duty, through its institutions and laws to protect as best it may from unjust attack and to vindicate the good name of the applicant.  It was submitted that the Tribunal had a duty to vindicate the good name of the applicant.  
2.	Relying upon the judgment of Hardiman J. in McGuire v. Ardagh [2002] 1 I.R. 385, that the applicant is a person on risk of a grave finding of fact against him and has a right to a full opportunity of defending himself by means of cross-examination, and cross-examination was the great weapon available to him for his own vindication.  Accordingly a right to cross-examine was a constitutional right and not a concession and could not be unreasonably confined or hampered in terms of time allowed or otherwise.  
3.	The applicant was entitled to conduct a full, meaningful and effective cross-examination of the notice party.  As, the primary issue, confronting the Tribunal is the credibility of the evidence of the notice party, in order to be in a position to conduct an effective cross-examination,  the applicant was entitled to any prior written statement or recorded statements of the notice party in the possession of the Tribunal relating to the matters in issue in this module.  
4.	Once the Tribunal moved from private investigation to public inquiry, the applicant was entitled to the full panoply of rights enumerated in the case of In Re: Haughey [1971] I.R. 217 which included the right to conduct a full meaningful cross-examination.
5.	It was submitted that without the prior written or recorded statements of the notice party which had not been disclosed, the applicant could not properly test the credibility of the notice party because it could not be put to the notice party that he had said different things on other occasions.  Alternatively it could not be put to him that he had failed to make the allegations now made in oral evidence, on prior occasions when he had an ample opportunity to do so.  
6.	Furthermore it was submitted that in light of the fact that the Tribunal would reach its determination based solely on the basis of the oral evidence and documents proved in evidence, the applicant was denied the benefit of drawing this undisclosed material into the public hearing for adjudication by the Tribunal insofar as that would be relevant to the issue of the credibility of the notice parties evidence.  
7.	Hence the applicant submits that his cross-examination of the notice party has been impermissibly hampered, in breach of his constitutional right to fair procedures and in consequence of this there has been a failure on the party of the Tribunal to vindicate the applicant’s right to his good name or to permit the applicant to vindicate his own good name.
8.	It was submitted that once the Tribunal moved from private investigative phase into public inquiry that any obligation of confidentiality or right to confidentially fell away, that the existence of the confidentiality asserted by the Tribunal was wholly inconsistent with the ventilation of matters of urgent public importance in public.  It could not be said that there was a public interest in a Tribunal merely accepting information in private which might be damaging to the good name of persons.  If the information given to the Tribunal in private led the Tribunal to determine that there was revealed to them matters of such grave and urgent public concern, within their terms of reference, which merited a public hearing, then once there was a move to public inquiry, it was in the public interest that there would be the fullest possible ventilation in public of these matters.  Thus it was submitted that those making allegations which warranted public inquiry and which attacked the good name of other persons, could not reasonably expect confidentiality in respect of the totality of the communications with the Tribunal relevant to the matters in question.  Similarly the Tribunal could not regard itself as bound by confidentiality to persons making allegations which warranted public inquiry, so as to oblige or entitle the Tribunal to withhold from disclosure material which was relevant to the issue to be inquired into, in public, especially, where, that non-disclosure was a breach of the constitutional right to fair procedures of a person whose good name was under attack. 
9.	That counsel for the applicant in approaching the cross-examination of the notice party were deprived of a proper opportunity to exercise their professional judgment on how to conduct a cross-examination and discharge their duty to the applicant and counsel are being put in the invidious position of being obliged to act as advocate but unable to properly discharge the duty owed to the applicant.
10.	It was submitted that once the Tribunal moved into public inquiry that it was in the public interest that any obligation of confidentiality would be set aside and in this regard reliance was placed on the cases of the Attorney General for England and Wales v. Brandan Book Publishers [1986] I.R. 597 and National Irish Bank v. R.T.É. [1998] 2 I.R. 465. 
11.	The applicant places reliance on the dictum of O’Dhálaigh C.J. in the case In Re: Haughey where he said the following:	
“Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedure.  The constitution guarantees such fairness and it is the duty of the court to underline that the words of Article 40, s. 3. are not political shibboleths but provide a positive protection for the citizen and their good name.”

For the respondent it was submitted by Mr. Clarke SC and Mr. Finlay S.C. as follows:
1.	The respondents did not breach the applicant’s constitutional right to fair procedures or fail to vindicate his good name.  
2.	In its ruling and also elsewhere in the hearing and as deposed to in the affidavit of Ms. Gilvarry the solicitor to the Tribunal, it is made clear that whilst the Tribunal has an established practice of not disclosing certain confidential information, the assurance of confidentiality thus given is subject to a number of exceptions and relevant to the applicant’s situation, in this case, is the exception whereby, if there is a gross or glaring or significant inconsistency between the undisclosed material and the statement circulated or the oral evidence given, that the Tribunal will disclose to the effected party, prior undisclosed statements which had been subject matter of confidentiality.  
3.	Thus the applicant had the guarantee of the Tribunal that there was not in the undisclosed material matters which were significantly inconsistent with the statement of 25th May, 2001 or the oral evidence.  Insofar as was contended by the applicant that there were allegations made against him for the first time in the oral evidence of the notice party, that was a matter which was apparent, and could be and indeed was put to a notice party in cross-examination.
4.	The Tribunal would not reach any determination on the evidence of the notice party until all of his evidence had been taken in both modules.
5.	Having regard to the above the applicant had been afforded the full panoply of rights as set out in the In Re: Haughey case and had the assurance of the Tribunal that there was no significantly inconsistent material withheld and thus there was no impairment or hampering of the applicants right to fully meaningfully and effectively cross-examine the notice party.  
6.	In order to carry out its task it was necessary for the Tribunal to be able to give an assurance of confidentiality to persons coming forward with information to it.  Without this, it would be deprived of essential information and necessarily impeded or very seriously frustrated in the carrying out of its mandate.  Thus it was in the public interest that the Tribunal be in a position to offer an assurance of confidentiality to persons furnishing information to it, who required that, and it was also essential for the efficient working of the Tribunal that it, itself, be in a position to impose an obligation of confidentiality on those to whom it circulated material in advance of the holding of a public inquiry in order to prevent the taking of unfair advantage by that early disclosure.   The giving of an assurance of confidentially carried with it, necessarily, the assurance that that confidentiality would continue to be observed regardless of the Tribunal going into public inquiry.  Such assurance of confidentiality was qualified by the exceptions in the case of material that was either grossly or glaringly or significantly inconsistent with a written statement to be circulated or where a public hearing took place with oral evidence given there, or where the Tribunal felt it had been mislaid or where there was material which was exculpatory of the person affected.
7.	It was submitted that this court should be slow to intervene, that the Tribunal was the best and only authority to determine its own procedures, to determine questions of balance between constitutional rights persons such as the applicant, and the necessary obligation on the part of the Tribunal to afford confidentiality, and the Tribunal had and should be permitted to have a wide margin of discretion in these matters.  It was submitted that this court was not a court of appeal from the Tribunal and that the Tribunal should recognise a wide discretion in the Tribunal both as to its own procedures and the balancing of rights as aforementioned.  In this regard reliance was placed on the case of Thomas Bailey and Others v. Mr. Justice Fergus Flood sole member of the Tribunal of Inquiry into Certain Planning Matters and Payments (Unreported judgment delivered on 6th March, 2000) in which the then president of the High Court Mr. Justice Morris stated as follows:
“The fact that the constitutional rights of a person affected by the decision are implicated is not a licence for the court to stand in the shoes of the decision maker and to speculate as to whether or not it would have come to the same conclusion.” 
And further on where he sated:
“The effective administration of a Tribunal of Inquiry would be impossible if it were compelled at every turn to justify its actions to the High Court.  The legislature has entrusted a broad measure of discretion to such Tribunals, including the discretion to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this court to whittle down that discretion, with the inevitable deleterious effects that would have on the effective of discharge of the important public tasks with which Tribunals of Inquiry are burdened.”  
8.	It was submitted that the authority of the Tribunal must be respected by the courts unless the test which was set out in the case of Joseph Murphy Senior v. the Honourable Mr. Justice Fergus Flood Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments [2000] 2 I.R. 1298, was satisfied.  This was expressed by Hamilton C.J. in giving the Judgment of the court as follows:
“The decision or rulings so made can only be interfered with by the court if they were:-
(a)	made in breach of the applicants constitutional rights, and/or
(b)	either unreasonable or irrational or flew in the face of fundamental reason and common sense.”  
9.	It was submitted that one category of the documents referred to were counsel’s notes.  It was contended that in no circumstances should notes made by counsel for their own purposes be disclosed as this would make it impossible for counsel to discharge their function.

THE POSITION OF THE NOTICE PARTY
Mr. Hugh O’Neill S.C. appeared at the start of hearing before me for the notice party but sought to be excused on the basis that the case of the notice party coincided with that of the respondents.  I excused Mr. O’Neill from further attendance during the hearing.  
I mention this because in the course of the respondent’s submissions it was submitted that there was in relation to the documents supplied by Mr. Noel Smyth to the Tribunal a legal privilege from disclosure.  Insofar as there may have been any such privilege it is apparent that it is the notice party who was the beneficiary of that privilege and it was for the notice party to assert it here.  I am of the opinion that if there was such a privilege it ceased to exist when the material in question was handed over by Mr. Smyth to the Tribunal and thereafter any restraint on disclosure would have been based on an obligation of confidentiality.

DECISION
The first issue necessarily to be confronted is the appropriate test to be applied to determine the correct basis upon which it is appropriate for this court to intervene [if at all] by way of Judicial Review into the issues raised in the application.  
The judgment of Hamilton C.J. in the Joseph Murphy Senior case makes clear that there are two circumstances only, in which this court can intervene, namely where there has been a breach of a person’s constitutional rights and/or the decision impugned is irrational or unreasonable or flew in the face of reason or common sense.  I took it to be implicit in Mr. Finlay’s submission and in particular his reliance on the Thomas Bailey case, that all decisions of the Tribunal are to be seen as enjoying the broad range or discretion contended for by Mr. Finlay including decisions involving the evaluation of and balancing of constitutional rights.
In my view a distinction is to be drawn between the decisions of the Tribunal on all matters within its remit and questions as to whether or not the consequence of any such decision is a breach of a constitutional right.
Where, as in this case it is claimed that a decision of a Tribunal has the effect of breaching the constitutional right to fair procedures, the onus rests on the claimant, i.e. the applicant in this case to prove, in the ordinary way, on the balance of probability, facts from which the court can conclude as a matter of law that a constitutional right has been breached.  If the applicant discharges that onus, necessarily the very important jurisdiction resting in this court, to vindicate constitutional rights is invoked, and this court would be failing in its duty to protect and vindicate constitutional rights, if it were to accept that a proven breach of a constitutional right was to be without remedy because it occurred within the autonomous remit of a Tribunal of Inquiry and was to be shrouded from scrutiny by this court by the kind of broad range of discretion contended for by Mr. Finlay.  
That is not to say that of course that a Tribunal does not have that range of discretion.  It is well settled, that Tribunals of inquiry such as this one, are the master of their own procedures and are the authority which must determine questions of relevance and admissibility of evidence, and must from time to time balance the rights, including constitutional rights of persons appearing before them with measures necessary for the Tribunal, to carry out its own duties.  However where a complainant comes to this court and satisfies this court on a balance of probabilities that there has been a breach of a constitutional right, this court must intervene, notwithstanding the fact that the breach complained, of may very well be the end result of a reflective and careful balancing of contending interests by the Tribunal, conducted within the remit of its terms of reference and with the benefit of the authority that goes with that.
In this case therefore I must consider whether on the facts put in evidence before me there has been a breach of the applicants right to fair procedures, with the consequence that there has been a failure to vindicate the applicant’s constitutional right to his good name.
In approaching this question I must consider in very practical terms the degree [if any] to which the ruling of the Tribunal hampers the cross-examination by counsel for the applicant of the notice party or whether the assurances given by the Tribunal as to the content of the undisclosed material lead to a conclusion that there has been no significant impairment of the capacity of the applicant to conduct a full and meaningful and effective cross-examination of the notice party.
The first thing to be said in this context is that this court fully accepts the assurance or guarantee given by the Tribunal to the effect that the undisclosed written or recorded statements of the notice party do not contain material which is either glaringly or grossly or significantly inconsistent with the statement of the notice party of 25th May, 2001 or the oral evidence given by the notice party.  
The question that has to be considered in the light of this, is what can the applicant not do in cross-examination of the notice party and does any such inhibition amount to a significant impairment of his right to cross-examine the notice party.
The applicant cannot put to the notice party that there is in these other statements of his, material which, though not grossly or glaringly or significantly inconsistent with his disclosed statement and evidence, is to some material extent inconsistent with it.  The applicant can not put to the notice party that the allegations made in oral evidence for the first time, were not made at the time these prior statements were made, and cannot question the notice party as to why they were not made then, but were made for the first time in oral evidence.  The applicant cannot bring in to the evidence through cross-examination, any inconsistency or indeed the absence of any reference in these undisclosed statements to the allegations later made in oral evidence, for the first time, so as to enable the Tribunal to consider the impact on the credibility of a notice party of the absence from the undisclosed statements of these references.  The non-disclosure of these earlier statements has the effect of excluding from the consideration of the Tribunal the impact which the material, or lack of material in these undisclosed statements should have on the credibility of the notice party.  
The applicant is also deprived of the benefit of having his lawyers consider the probative value, in relation to the credibility of the notice party, of these undisclosed statements.
This is in my view a real detriment to the applicant.  The fact that the Tribunal itself considers the relevance, admissibility and probative value of particular material and forms a judgment on it, for the benefit of a person affected, is an inadequate substitution for the exercise of the professional judgment by the lawyers engaged by a person affected, who had the benefit of instructions from that person and therefore is in a better position to assess both relevance and probative value from the point of view of that person.  
I am satisfied that in a forensic contest, as in this module of the inquiry, where the credibility of the notice party is of crucial importance the foregoing inhibitions resulting from the ruling of the Tribunal are very real impairments of the capacity of the applicant to cross-examine the notice party and I am satisfied therefore that the applicant has demonstrated to my satisfaction that the ruling of the Tribunal has had the consequence that his right to cross-examine the notice party has been in the words of Hardiman J. in the case of McGuire v. Ardagh, been
“Unreasonably confined or hampered….” 

Against this it has to be said that the applicant’s right to cross-examine is not an absolute right and it must be considered whether the factors which persuaded the Tribunal to refuse access to the documents in question are of such weight as to justify an encroachment into the applicants right to cross-examine to the extent that has been done by the Tribunal’s ruling.
It may very well be that in the assessment of these factors it is appropriate to adopt the approach of “anxious scrutiny” as described in the judgment of Lord Wolfe M.R. in the case R v. Lord Saville, Ex parte A [1999] 4 All E.R. p. 60 where he says the following:
“What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision maker are curtailed.  They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless they are sufficiently significant countervailing considerations.  In other words, it is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification.  Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights.  The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right and then apply the test accepted by Bingham M.R. in Ex parte Smith which is not in issue.”
The test referred to, enunciated by Bingham M.R. in the above case is contained in the following passage from the case of R v. Ministry of Defence, Ex parte Smith [1996] Q.B. 517 as follows:
“The courts may not interfere with the exercise of an administrative discretion on substantial grounds save where the court is satisfied…that it is beyond the range of responses open to a reasonable decision maker.  But on judging whether the decision maker has exceeded this margin of appreciation the human rights context is important.  The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”  

It would seem to me having regard to the clarity of the passage in the judgment of Hamilton C.J. from the Haughey v. Moriarty case, that it cannot be said that the law in this jurisdiction has moved to the extent that the determination of whether or not there has occurred a breach of a constitutional right as a result of a decision of a public tribunal, is to be determined by applying to that decision a “reasonableness” test as set out in either “The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 or in The State (O’Keeffe) v. An Bord Pleanála [1993] 1 I.R. 39.
As mentioned above the occurrence of a breach of a constitutional right is to be proved in the ordinary way by facts on the balance of probability leading if justified to a conclusion as a matter of law that it has been a breach of a constitutional right.  Whether the encroachment into that constitutional right is justified depends upon the validity of the factors relied upon to justify it and given, that what is sought to be justified, is a breach of, or encroachment into a constitutional right, the factors put forward to justify this are properly to be assessed with the kind of caution or circumspection, which may aptly be described as “anxious scrutiny”. 
I accept, that the acceptance of information on the basis of an assurance of confidentiality subject to the qualifications mentioned, is a legitimate tool, to be used by the Tribunal in the discharge of its mandate and that it may be in the public interest that the Tribunal avail of this procedure where appropriate.
No difficulty arises in relation to such a proposition when the Tribunal is in the private investigative stage of an inquiry.
Necessarily however a different approach must be adopted when the Tribunal determines that a public inquiry is merited.  
Clearly the problem that arises in this context is whether previous assurances of confidentiality given by the Tribunal can survive. In this context another public interest becomes of paramount importance and that is the public interest in the fullest possible ventilation in public of all relevant and admissible evidence.  
The public interest in this regard is highlighted in s. 2 (a) of the Tribunals of Enquiry (Evidence) Act 1921 which as amended reads as follows:
“(a)	shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal unless in the opinion of the Tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the enquiry or the nature of the evidence to be given and in particular where there is a risk of prejudice to criminal proceedings.”
The following passage from p. 3 of the judgment of Denham J. in the Thomas Bailey case aptly illustrates the point:
“That the applicants have a constitutional right to privacy is beyond debate.  It is equally well established that this is not an absolute right but one which must in certain circumstances be weighed against or balanced with the envisages of the common good.  Again, the common good may require that matters, resolved but democratically elected representatives in the houses of the Oireachtas to be of urgent public importance, be inquired into by the Tribunal.  It is of the essence of such Tribunals that the enquiries be held in public.  If this is not done public disquiet which led to the appointment of the Tribunal could not be allayed.”

Thus to allay public disquiet this process must be carried out in public.  It is of course well settled by authority that the inquiry may proceed in a private investigative form and the Tribunal must then determine if the relevant and admissible evidence gathered in this stage of inquiry merits the holding of its inquiry in public.  Where such evidence exists it is necessary in order to allay public disquiet that the process be continued in public.  The essential purpose of a Tribunal Inquiry into a matter of urgent public importance is for the Tribunal to ascertain the truth and report same to the Oireachtas with recommendations where appropriate.  The public interest in this process is in the full exposure in public of all admissible evidence relevant to the matter under inquiry.
  The procedures adopted by the Tribunal in its private investigative state such as the assurance of confidentiality could not in my view be a factor which would prevent disclosure in the public stage of the inquiry of material that was relevant to the matter under inquiry, thereby inhibiting the Tribunal from a consideration of all relevant evidence with the consequent risk of infringing the constitutional rights of persons effected and the inevitable result of withholding from public scrutiny admissible evidence which could or should affect the determination of the Tribunal and also the appreciation of the public of the truth of the matter.  
Such a course would undoubtedly do grave injury to the essential purposes of having a Tribunal of Inquiry and hence in my view the public interest in the fullest disclosure must prevail over the public interest in the use of confidentiality to gather information in the private investigative stage, it having been determined by the Tribunal that it must proceed by way of a public inquiry.
I am of the opinion that it would be very damaging to the public interest in this regard, if there was a withholding from disclosure of material in the possession of the Tribunal relevant to the subject matter or a particular module, and which a person affected by the allegations made in the inquiry, might need to establish the truth, and vindicate his or her good name.  
Thus in my view where a public inquiry takes place the public interest in the full, public, and untrammelled ventilation of all relevant and admissible evidence so that the truth can be ascertained and rendered apparent, must supersede any public interest in the use of confidentiality to obtain information in the initial private investigative stage of inquiry.  Necessarily in my view the balance is tilted in favour of the public interest in the fullest disclosure, where, to not permit disclosure, is in fact a breach of the constitutional right to fair procedures, of a person against whom damaging allegations are made.  
Having found that there has been a breach of the applicants right to fair procedures it is unnecessary for me to determine whether, in the absence of such a breach, in the context of a public enquiry, the public interest in the full disclosure of all relevant and admissible evidence, should prevail over any public interest in the use of confidentiality, to gather information in the private investigative phase.
Looking at the negation of confidentiality in these circumstances from a stance of anxious scrutiny, it would be surprising in my view if this were to have as deleterious an effect as is apprehended by the Tribunal.  Whilst it is the case that this problem will only arise where the Tribunal determines that a public inquiry is merited, nevertheless it is to be anticipated that the inability of the Tribunal to adhere to an obligation of confidentiality once it went into public enquiry, where the material subject to confidentiality was relevant to the matters under enquiry, was admissible and was of some probative value, will have some effect on the willingness of person to come forward to give information to the Tribunal.  Having regard however to the fact that in the context of a public enquiry there is an undisputed obligation on the part of the Tribunal to furnish the persons affected the full panoply of the In Re: Haughey  rights, including making available to persons affected either notice of the evidence to be given in a formal written statement or the evidence itself; it must be apparent to any person who comes to the Tribunal with information, that the matter may progress to a public enquiry with the necessary  disclosure at that stage of relevant evidence or notice of that evidence.  With that in view there could hardly, in my view be a reasonable expectation of confidentiality in relation to material furnished to the Tribunal where that material was clearly relevant to the subject matter of the enquiry and particularly where the material in question may have contained serious allegations affecting the good name of another person or was connected to or relevant to such allegations.  It would seem therefore to me that question of confidentiality then only arises, in any event, in respect of information which is either irrelevant or peripheral to subject matter of the enquiry is inadmissible as evidence or that is of such a trivial nature as to be of no real probative value.
Looked at in this way it is difficult to see why much weight should be attached to the pubic interest in the ability of the Tribunal to give an assurance of confidentiality, as a means of attracting persons to come forward with information.  One must further query whether indeed there is any public interest in the Tribunal being available to receive under a cloak of confidentiality damaging allegations which potentially affect the good name and perhaps livelihood of the persons affected by such allegations.  
The Tribunal also apprehended a threat to the management of its business by the mixing of material from one module to another.  In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to the current module of the Tribunal.  In my view in these circumstances there is no risk of bringing the kind of chaos to the business of the Tribunal that has been mentioned.  
The respondents have placed reliance upon the ruling of O’Sullivan J. in the case of Sharwin v. Independent Newspapers Limited.   This was a lible action in which the notice party herein was a witness.  In the course of the hearing an application was made to O’Sullivan J. to direct the notice party to produce a copy of his statements made to the Tribunal.  The learned trial judge refused that application preferring the public interest in preventing public disclosure of the notice party’s statement to the public interest in ensuring that a litigant was entitled to have available to him all relevant information.  That ruling was made at a time when the Tribunal was proceding in a private investigative stage in relation to its enquiry and in my view for that reason the ruling of the learned trial judge is properly to be distinguished on that ground.
It was submitted by Mr. Finlay that some of the documentation referred to were counsels notes made for their own purposes and these should never be disclosed.  I would readily agree with this submission but I would also agree with the submission of Mr. Sreenan that a mere recording by counsel of information taken from the notice party should not attract any such privilege from disclosure.  In that context the recording could have been done by any person with transcribing skills.
I have come to the conclusion that there has been a breach of the applicant’s constitutional right to fair procedures and the encroachment thus made into those rights is not necessary for the protection of the public interest or justified by reference to any public interest.  
Accordingly I will grant the declaration sought in the applicant’s statement of grounds but will amend the declaration as sought so as to confine the documents concerned to those documents which are relevant to the present or current module of the inquiry.  I should make it clear, in this regard, also, that the declaration is not to include notes made by counsel solely for their own purposes, but is to include information recorded or transcribed from the notice party by counsel.  I will also grant the order of certiorari claimed.