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Constitutional law – Company law – Privilege against self incrimination – Right to silence – Admissibility of confessions – Investigation of company by inspectors appointed by Minister – Powers of inspectors – Practice and procedure – Whether person being questioned entitled to refuse to answer questions which might tend to incriminate – Whether statement to inspectors voluntary – Whether answers given to inspectors admissible at subsequent criminal trial Whether inspectors’ powers consistent with natural and constitutional justice – Whether legislature abolished privilege against self incrimination – Companies Act, 1990 (No. 33) ss. 8, 10, 18.
The officials of the bank, the subject of the inspectors investigations, are not entitled to refuse to answer questions properly put to them pursuant to the inspectors statutory powers. However, the question of whether a confession is admissible evidence in a subsequent criminal trial is a matter to be decided by a trial judge having regard to the principle that the confession should be voluntary. The Supreme Court so held in further saying that in determining whether a confession has been forced or induced it is immaterial whether the compulsion or inducement comes from the executive or the legislature.
JUDGMENT of Mr. Justice Barrington delivered on the 21st day of January, 1999.
This case raises an important point on the position of the right to silence in Irish Law.
The appeal is an appeal against the Judgment and Order of Shanley J. made herein on the 13th day of July, 1998.
By his said Order the learned trial Judge declared:-
(i) “That persons (whether natural or legal) from whom information documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990 are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that these answers or documents may tend to incriminate him/her or it.
(ii) That the procedures outlined by the Inspectors in their letters dated the 4th day of June, 1998 (contained within exhibits C and D to the Affidavit of John Blayney and Tom Grace sworn on the 11th day of June, 1998) are consistent with the requirements of natural and constitutional justice”.
In the course of the hearing before this Court Counsel for the Appellants abandoned their appeal against the second declaration quoted above. In the course of their written submissions Counsel had stated that they were only concerned with the rights of natural persons and were not concerned to argue the case for legal persons.
The present appeal accordingly is concerned only with the right to silence so far as it affects natural persons. This means, in effect, that the Court is concerned with the rights of Mr. John O’Reilly and other employees of the National Irish Bank Ltd. in respect of whom he is the representative Respondent and Appellant.
FACTUAL BACKGROUND TO THE CASE.
On the 30th March, 1998 the High Court, on the application of the Minister for Enterprise and Employment, pursuant to S. 8 (1) of the Companies Act, 1990 appointed the Honourable Mr. John Blayney, a retired Judge of the Supreme Court, and Mr. Thomas Grace, FCA, to be joint Inspectors to investigate and report on the affairs of National Irish Bank Ltd. relating to;
(i) The improper charging of interest to accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(ii) The improper charging of fees to accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(iii) The improper removal of funds from accounts of customers of the said National Irish Bank Ltd. between 1988 and the 30th March, 1998;
(iv) All steps and action taken by National Irish Bank Ltd., its Directors and Officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered.
(v) The manner in which the books records and accounts of the said National Irish Bank Ltd. reflected the foregoing matters.
(vi) The identity of the person or persons responsible for and aware of any of the practices referred to above.
(vii) Whether other unlawful or improper practices existed in National Irish Bank Ltd. which served to encourage the evasion of any revenue or other obligations on the part of the Bank or third parties or otherwise”.
The Inspectors, having carried out extensive preparatory work, intended to commence interviewing employees of the Bank on the 28th May, 1998. However four firms of Solicitors wrote to the Inspectors on behalf of employees or former employees. One firm represents seventy-five such persons, another five, another a single retired employee and the fourth also represents a single retired employee. The relevant issue raised by the Solicitors, so far as the present appeal is concerned, is whether interviewees, in the context of an investigation under Part II of the Companies Act, 1990, have a right to refuse to answer questions put by the Inspectors on grounds of possible self incrimination, and, if they have not, whether answers or other evidence obtained from the employees can be used against them in any subsequent criminal trial.
The Inspectors who had been advised that interviewees would not have the right to refuse to answer questions on the grounds that the answers might be incriminating, applied to Mr. Justice Kelly in the High Court for directions.
Kelly, J., in deciding to settle the present issue for decision by the High Court referred to the procedure set out in S.10 s.s.5 of the Companies Act, 1990 and rejected it as being far too cumbrous having regard to the large number of prospective interviewees contemplated by the present case.
The relevant provision of 5.10 s.s. 5 provides that in a case where
“If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection (2) refuses to produce to the inspectors any book or document which it is his duty under this section to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case.”
In his Judgment delivered on the 18th day of June, 1998 Kelly, J. stated:-
“I am also satisfied that it would not be in the interest of an expeditious and efficient conduct of the investigation or indeed in the public interest that these matter be left to be dealt with under the procedures prescribed in S. 10 (5) of the Act. They would involve a cumbersome, time consuming and wholly unsatisfactory way of dealing with these matters, particularly in the context of a large number of proposed interviewees. The operation of that subsection would require individuals to be called before the Inspectors and upon refusing to answer questions, the Inspectors in each case certifying that refusal to this Court and a subsequent hearing of the matter.”
Under S.7 (4) of the Act the Court is entitled to give directions. That subsection reads –
‘Where the Court appoints an Inspector under this Section or Section 8 it may, from time to time, give such directions as it thinks fit, whether to the Inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible’.
I am satisfied that this is an appropriate case in which give directions so that these issues may be determined fairly, efficiently and with the minimum of costs being incurred”.
The relevant statutory background to the present case is contained in Sections 10 and 18 of the Companies Act, 1990.
Section 10 (so far as relevant and as modified as a result of the decision of the Supreme Court in Desmond & Ors v. Glackin & Ors  3 IR 67) reads as follows:-
10.-(1)“It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of section 9 to produce to the inspectors all books and documents of or relating to the company, or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.
(2) If the inspectors consider that a person other than an officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs, they may require that person to produce to them any books or documents in his custody or power relating to the Company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation which he is reasonably able to give; and it shall be the duty of that person to comply with the requirement
(4) An Inspector may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company or other body corporate and such person as is mentioned in subsection (2) in relation to its affairs may-
(a) administer an oath accordingly,
(b) reduce the answers of such person to writing and require him to sign them,
(5) If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may offered in defence
(6) make any order or direction it thinks fit, including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer any particular questions put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector… ”
Section 18 provides as follows:-
18.- “An answer given by a person to a question put to him in exercise of powers conferred by-
(a) section 10;
(b) section 10 as applied by sections 14 and 17, or
(c) rules made in respect of the winding-up of companies whether by the court or voluntarily under section 68 of the Courts of Justice Act, 1936, as extended by section 312 of the Principal Act;
may be used in evidence against him, and a statement required by section 224 of the Principal Act may be used in evidence against any person making or concurring in making it”
THE RIGHT TO SILENCE AT COMMON LAW AND UNDER THE CONSTITUTION OF THE IRISH FREE STATE.
The so called right to silence was developed by the Common Law Courts in reaction to the abuses of the Courts of Star Chamber. The classic decision on the position of the right to silence at common law and under the Constitution of the Irish Free State is contained in the case of the State (McCarthy) v. Lennon  IR 485.
That case arose out of an amendment made to the Constitution of the Irish Free State by the Constitution (Amendment No. 17) Act, 1931. The effect of that amendment was to insert a new Article (Article 2A) into the Constitution of the Irish Free State the provisions of which Article were to override the subsequent Articles of the Constitution in the event of a clash between them. The amendment also established a tribunal with wide ranging powers and, conferred on Police Officers wide powers of arrest and interrogation and made it a criminal offence potentially punishable by death, for an arrested person to refuse to answer certain questions duly put to him under these powers.
The prosecutor, McCarthy, had been duly arrested and interrogated under the provisions of Article 2a He had initially refused to answer questions but,
when the implications of his refusal were drawn to his attention, had made a statement. This statement was admitted at his trial despite Counsel’s objection. It was the only substantial evidence against him and he was convicted. The State (McCarthy) v. Lennon was an application for certiorari and habeas corpus and the point at issue was whether the statement had been properly admitted at the trial. The Supreme Court of the Irish Free State held by two votes to one that it had.
Fitzgibbon, J., in one of the majority Judgments, described the position of the common law rule against self incrimination and the effect of Article 2a of the Constitution of the Irish Free State upon it, as follows-
“By the common law, which existed for centuries before the Free State was constituted, statements or confessions obtained from an accused party by threats or inducements held out by persons in authority could not be given in evidence against him, and the maxim Nemo tenetur se ipsum accusare was rigidly enforced by the Judges. When the Constitution of the Free State was framed that law was continued in force. here by Art. 73. In 1791 it had been adopted by the people of the United States in Article V of that part of their Constitution which has always been popularly known as the Bill of Rights
‘No person….shall be compelled in any criminal case to be witness against himself nor be deprived of life, liberty, or property without due process of law’; and under our Constitution as originally adopted it would have been impossible to put McCarthy’s statement in evidence against him.
It is true that the rigid rule had been relaxed in a very special class of cases, those under the Bankruptcy code, where bankrupts and insolvents were compelled by the special Bankruptcy statutes to make full disclosures of their trading and affairs, and it was decided that statements so made were admissible in evidence in criminal prosecutions against the bankrupt who made them. He had, however, this protection, that his statements were made in the presence of a judicial officer, and not in a prison cell under what was tantamount to a threat of capital punishment.
But whatever may have been the state of the law in this country before the enactment by the Oireachtas of the Constitution (Amendment No. 17) Act on October 17th, 1931, it has been expressly enacted by sect. 2 of Art. 2A of that statute that Art. 73 of the Constitution, which introduced the common law and the maxim to which I have referred, shall be read and construed subject to the provisions of Art. 2A and that in case of any inconsistency between Art. 2A and Art. 73, Art. 2A shall prevail. Therefore full effect must be given by the Courts to whatever is enacted in Art. 2A, notwithstanding any statute or common law previously in force under Art. 73”.
It does not appear that Fitzgibbon, J. was suggesting, in the passage quoted, that the right to silence had obtained the status of a constitutional right under the Constitution of the Irish Free State but rather that, by virtue of the provisions of Article 73 of the Constitution of the Irish Free State, the common law right to silence had continued as part of the law of the Irish Free State. The distinction, however, was of no importance for that Judgment because, whatever the status of the right to silence prior to the enactment of the 17th Amendment to the Constitution of the Irish Free State, by virtue of that Amendment, it was subordinated to Article 2A of the Constitution.
The majority in the Court seem also to have been influenced by the provisions of the Bankruptcy Acts and in particular by the construction which had been placed upon them in R. v. Scott 7 Cox, C.C., 164 which had held not only that a bankrupt was bound to answer certain questions even if they tended to incriminate him but also that his answers could be used against him in a subsequent criminal trial. Indeed Counsel for the State appears to have relied on R. v. Scott for the proposition that once the privilege against self incrimination had been removed, it was removed for all purposes.
This proposition was vigorously rejected by Kennedy, C.J. in his dissenting Judgment. He said (at p.495 of the Report):-
“I understood his proposition to be capable of statement shortly in this way:- When the privilege accorded to evidence of a criminating character is removed for any purpose, it is gone for every purpose, and the evidence is lawfully admitted for every purpose, from which he argues that f the police are given authority by statute to compel a person to answer questions put by them to him, subject to a statutory penalty if he refuses to answer, any statement which the individual makes to a policeman in answer to any such question is admissible in evidence against the individual, free from the privilege which the individual might otherwise set up against the admission of such statement in evidence against him. I answer simply: “Non sequitur”. My simple logic cannot trace any sequence from the sworn evidence given compulsorily in a Court of law to a statement, not on oath, privately extracted by a policeman from a man, in his custody and unprotected, without eyewitness of the alleged examination or record of what passed, without regulation of time or place or circumstance. The maxim nemo tenetur se ipsum accusare may no doubt be derived from the English common law in force in this country by force of statute, recognised, indeed, in some of our own legislation. Whatever be its origin, it contains a sound principle, one, indeed, to which appeal has been made often in the past. It is certainly now firmly established in our practice and one of the best known rules of law amongst the public and generally accepted. If Parliament wishes to suspend the application of that principle I look for an express repeal of it.
There is no trace in the Constitution Amendment of a purpose of using a prisoner ‘s extorted answers in evidence in any Court for any purpose
The last sentence in the passage quoted illustrates the weakness of the Court’s position. At the time of the enactment of the 17th Amendment to the Constitution of the Irish Free State the Oireachtas was in a position to amend the Constitution without reference to the people. The Oireachtas was, for the time being, in the position of a sovereign Parliament. Article 2A was to prevail over subsequent provisions of the Constitution in the event of an inconsistency between it and them. There was no point therefore in appealing to such inconsistency between it and them. The Judges were virtually in the same position as Judges under the British Constitution. It was simply a question of working out what Parliament meant from what Parliament said. If it was clear from the words of the Amendment and the surrounding circumstances that Parliament intended to remove the right of silence that was the end of the matter. The only point which could still be made was that made by Kennedy, C.J. to the effect that the fact that the person was legally compellable to answer a police question did not automatically make his answer admissible against him at a subsequent criminal trial.
Many years later, In re McAllister  IR 238 Kenny, J. stated that a bankrupt was entitled to decline to answer any question the answer to which might incriminate him or which might disclose that he had committed a criminal offence. He added (at p. 243):-
“I know that it has been the practice of the Judges who have exercised bankruptcy jurisdiction during the last twenty years to warn witnesses they are not obliged to answer questions f their evidence would show that they had committed a criminal offence “.
Subsequently Section 21(4) of the Bankruptcy Act, 1988 provided that:-
“A bankrupt or other person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of his answers shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer
The right to silence had its origins in the common law but was elevated into a constitutional principle by the 5th Amendment to the American Constitution. It grew out of the revulsion of the Judges for forced confessions as being both unjust in their origin and unreliable in practice. Some Judges also seemed to have felt that it was unfair to place a man in a position where he was condemned no matter what he did. As Lord Mustill put the matter in
“Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal.
An American Judge had the same idea in mind when he referred to ‘the cruel trilemma of self accusation, perjury or contempt” (see Murphy v. Waterfront Commissioners 378 US 52 at 55.
The right to silence or privilege against self incrimination was a Judge made law and could be abridged or abolished at any time by a sovereign Parliament. The most the Judges could do was to insist that, if Parliament wished to abolish such a cherished doctrine of the common law it should state its intention clearly. This was the dilemma which faced the Irish Judges in the case of the State (Mc Carthy) v. Lennon. The Oireachtas had, for the time being, untrammelled legislative power. It accordingly had power to introduce the Constitution (Amendment No. 17) Act., 1931 giving power to the tribunal established by that Act to inflict penalties up to and including the death penalty on suspects who refused to answer questions. There was nothing the Courts could do about it.
If however one regards the right to silence as not merely a common law privilege but as a constitutional right, one must ask oneself “What is the extent of it and what limitations can be placed upon it?. Is a confession to be rejected because it was obtained by the application of executive power but to be accepted if obtained solely by the application of legislative power?. Or is it the element of compulsion which makes the confession unacceptable?.”
The provisions of our Constitution invoked by the Appellant as assisting his submission are Article 40.6.1, Article 40.3 and Article 38.1.
The relevant parts of these three constitutional provisions read as follows-
(i) the right of the citizens to express freely their convictions and opinions.
In the context of the present case the effect of Article 40.3 is merely to reinforce the other two constitutional guarantees the first of which, as interpreted by this Court, applies to the right to silence generally and the second of which applies to the conduct of a criminal trial.
ARTICLE 40 SECTION 6.
This Court in Heaney v. Ireland 1 IR 580 derived the general right to silence from the right to freedom of expression guaranteed to citizens by Article 40.6. The Court held that the constitutional right of freedom of expression carried with it, by necessary implication, the correlative right to remain silent. In this respect the Court followed the reasoning of an earlier Supreme Court in the Educational Company v. Fitzpatrick (2)  IR 345 which derived from the constitutional right of freedom of association the correlative right to refuse to, associate. In this respect the present Supreme Court differed from the then President of the High Court Mr. Justice Costello who had derived the right to silence from Article 38.1 of the Constitution. But the Court held that the right to silence was not absolute but might in certain circumstances have to give way to the exigencies of the common good provided the means used to curtail the right of silence were proportionate to the public object to be achieved.
In the Heaney case the Court was dealing with a provision of the Offences against the State Act, 1939 which was an Act dealing with threats to the security of the State and the Court held that the curtailment to the right of silence contained in Section 52 of the Act was no more than was necessary in the circumstances.
The present case deals with the investigation of commercial fraud. No doubt this may often be a much less serious matter than the matter under investigation by the Court in the Heaney case but nevertheless potentially it is a matter of great importance in modern society.
The powers of Inspectors appointed by the Secretary of State under the British Companies Act, 1985 are broadly similar to the powers of Inspectors appointed by the Court under our Companies Act, 1990. For that reason it is interesting to note that in the Saunders case the European Court of Human Rights in its Judgment dated the 17th December, 1996 at paragraph 67 said that the powers of Inspectors appointed under the British Companies Act, 1985:-
were essentially investigative in nature and that they did not adjudicate either inform or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities -prosecuting, regulatory, disciplinary or even legislative (judgment of 2l September 1994, Series A no. 294-B, p. 47, paragraph 61). As stated in that case a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6 paragraph 1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities (ibid., p.48, paragraph 62).
Accordingly the Court ‘s sole concern in the present case is with the use made of the relevant statements at the applicant ‘s criminal trial “.
Likewise if there are grounds for believing that there is malpractice or illegality in the operation of the banking system, it is essential, in the public interest, that the public authorities should have power to find out what is going on. It appears to me that the powers given to the Inspectors under Section 10 of the Companies Act, 1990, as set out earlier in this Judgment, are no greater than the public interest requires. Their meaning is clear and they pass the proportionality test. Accordingly it appears to me that interviewees are not entitled to refuse to answer questions properly posed to them by the Inspectors pursuant to the Inspectors’ powers under the Act.
Article 38.1 deals with a different matter. That Article, as reinforced by Article 40.3, deals with the conduct of a criminal trial and provides that no person is to be tried on any criminal charge “save in due course of law.” The phrases “due course of law” and “due process of law” like the phrase “equality before the law” embody dynamic constitutional concepts into which lawyers have obtained deeper insights as Society has evolved. But it is doubtful if the principle of proportionality – so important in other branches of constitutional law – can have any useful application here. A criminal trial is conducted “in due course of law” or “with due process of law” or it is not. The question then arises would a trial, at which a confession obtained from the accused under penal sanction imposed by statute, was admitted in evidence against the accused, be a trial in due course of law?
SHOULD THE COURT ATTEMPT TO GIVE GUIDANCE AT THIS STAGE.
A preliminary difficulty arises in attempting to answer this question. The difficulty is that the conduct of a criminal trial in due course of law is primarily a matter for the trial Judge. The question of whether a statement is or is not a voluntary statement depends upon the circumstances in which it was made. The fact that Inspectors are armed with statutory powers or may even have invoked them does not necessarily mean that a statement made in reply to their questions is not voluntary. This consideration appears to have influenced the learned High Court Judge and to have caused him to decline to give any further guidance than is contained in his Judgment.
Nevertheless a practical problem has arisen in the course of the Inspectors’ enquiries. The Inspectors and the Solicitors advising the Bank officials disagree as to the correct interpretation of the Inspectors’ powers and as to the implications for the Bank officials of answering the Inspectors’ questions. In these circumstances the Inspectors have applied to the High Court for guidance. Kelly, J. took the view that the Inspectors’ application was a proper one and decided to settle the present issue as the most practicable way of resolving the problems which had arisen between the Inspectors and the Solicitors for the Bank officials. Under these circumstances this Court – while in no way attempting to pre-judge or anticipate the actual decision of any trial Judge who may, hereafter, have to conduct a criminal trial arising out of any matter disclosed by the Inspectors investigations, should, in my opinion give further guidance.
THE SAUNDERS CASE.
Earlier in this Judgment I have referred to the fact that the majority Judges in the European Court in the Saunders Case found powers such as those vested in the Inspectors in the present case to be necessary to enable the public authorities to investigate fraud. At the same time the Court found that some of the answers given by Saunders in reply to Inspectors in that case were self incriminating and that the use made by the prosecution, at the subsequent criminal trial, of Saunders replies to the Inspectors was such as to deny him a ‘fair trial” within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights. At paragraph 74 of its Judgment the Court stated:-
“The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings …. Moreover the fact that Statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right.”
THE FERREIRA CASE.
A similar line of reasoning led the Constitutional Court in South Africa in Ferreira & Ors. v. Levin & Ors.  ISA 484 to conclude that part of S.4 17 of the South Africa Companies Act, 1973 was unconstitutional. The section in question dealt with the examination of Directors and Officers of an insolvent Company in the course of a winding up. It provided that any such person should be required to answer questions put to him notwithstanding that the answer might tend to incriminate him and that “any answer given to any such question may thereafter be used in evidence against him “. The Court held that the provision contained in the words quoted was unconstitutional as violating an accused person’s right to a fair trial.
THE IRISH CASES.
A fundamental rule of Irish law is that a confession is not admissible at a criminal trial unless it is voluntary. In The People (Attorney General) v. Cummins  IR 312 (at p. 322) Walsh, J. delivering the unanimous Judgment of the Supreme Court, reiterated this principle in the following words:-
“It should be said at once that a trial Judge has no discretion to admit an inculpatory or an exculpatory confession, or statement, made by an accused person which is inadmissible in law because it was not voluntary. ft is a matter for the trial Judge to decide, when he has heard the evidence on the point, whether or not he will admit a statement, but f he is satisfied that it was not voluntary then his decision can be only to exclude it”.
This dictum of Walsh, J. was applied by the Court of Criminal Appeal in the later case of The People v. Gilbert  IR 383. In that case the accused was tried in the Circuit Court on indictment for receiving a motor car knowing it to have been stolen, contrary to Section 33 s.s.1, of the Larceny Act, 1916. Before the trial a policeman had invoked Section 107 of the Road Traffic Act, 1961, and had asked the accused to state who was using the car at a particular time. The accused had answered that he was using it at that time. Under Section 107 of the Act of 1961 a person commits an offence if he fails to give any information in his power relating to the identity of the person using a vehicle, if so requested by a policeman. The accused had been informed of the penalty under Section 107 before he was questioned. At the trial of the accused evidence of his incriminating statement was given and he was convicted.
The Court of Criminal Appeal held that the accused’s statement made in answering questions posed pursuant to Section 107 of the Road Traffic Act, 1961 was not a voluntary statement and that evidence of that statement should not have been admitted in evidence at the trial.
In the course of its Judgment the Court (at p. 386, 387 of the Report) stated:-
“That a statement by an accused person which is not voluntary cannot be admitted in evidence is quite clear; this has been confirmed recently by the Supreme Court in The People (Attorney General) v. Cumin ins
The Court then quotes the passage quoted above from the Judgment of Mr. Justice Walsh in the Cummins case and continues-
“As in the present case the statement in question was made after the Sergeant had stated that a failure or refusal to answer would constitute an offence involving serious penalties, in our opinion it could not be said in any sense to be a voluntary statement and so the trial Judge should not have admitted it in evidence on the trial of the offences with which the appellant was charged under the Larceny Act, 1916. We express no opinion on the position which would have existed if the charges had been for offences under the Road Traffic Acts”.
The reference to the Road Traffic Acts in the last sentence is puzzling. Presumably the Court did not wish to cast any doubt on the powers of the Police to collect information under the Road Traffic Acts. But, in principle, a confession, once involuntary, would appear to be equally objectionable no matter what the nature of the criminal prosecution.
A rather different view was taken, albeit obiter, by the Court of Criminal Appeal, in the case of The People v. McGowan  IR 45. In that case the accused had been arrested under Section 30 of the Offences against the State Act. He had subsequently made an incriminating statement which both the trial Court and the Court of Criminal Appeal were satisfied was a voluntary statement. Section 52 of the Offences against the State Act, 1939 had not been invoked by the police while the accused was in custody under Section 30 and there was no evidence that the accused was even aware of the provisions of that Section. The status of statements made by an accused person in responce to the exercise by the police of their powers under Section 52 of the Offences against the State Act was not therefore properly before the Court. The Judgment does however contain the following passage which is obviously obiter:-
“Even if s.52 of the Act of 1939 had been invoked, or even if the accused had been aware of its provisions, in the view of this Court the submission would still not be sound in law. Section 52 of the Act of 1939 is almost identical in terms with s. 15, sub-s. 1, of Article 2A of the Constitution of the Irish Free State. In The State (McCarthy) v. Lennon the former Supreme Court held that a statement taken in pursuance of the provisions of s. 15 of Article 2 was lawfully taken and was admissible in evidence. Counsel on behalf of Mc Carthy had objected at the trial to the admission of the statement in evidence on the ground that it was not voluntary, being made under compulsion by reason of the punishment to which persons declining to answer questions put to them pursuant to s. 15 of Article 2A rendered themselves liable. In the course of his judgment, Fitzgibbon J said at p. 500 of the report: – ‘The plain and obvious effect of Art. 2A sect. 15, is to empower the Garda Síochána to interrogate persons detained on suspicion under the Article, and sect. 16 makes it a criminal offence to refuse to answer, or to answer untruthfully. Therefore statements so obtained are obtained lawfully, and I know of no law which makes statements or confessions lawfully obtained or made, inadmissible as evidence in any legal proceeding. At p. 506 Murnaghan I said that he could not see how relevant evidence which had been obtained in a lawful manner could be declared inadmissible. This Court respectfully agrees with those opinions. In the opinion of this Court, the law applicable is succinctly summarised at p. 248 of the 4th edition of Cross on Evidence where it is stated:-
‘It seems that, if information has been lawfully obtained pursuant to statutory provisions and there is no express restriction on the use which can be made of the information, the person giving it cannot object to its being used in evidence against him either on the ground that such use would infringe his privilege against self-incrimination or because the information would not have been given voluntarily’. Therefore, this ground also fails. Accordingly, the Court refuses both applications for leave to appeal”.
The passage quoted compares Section 52 of the Offences against the State Act, 1939 with Section 15 s.s.1 of Article 2A of the Constitution of the Irish Free State but does not advert to the fact that Article 2A of the Constitution of the Irish Free State overrode all subsequent Articles of that Constitution whereas Section 52 of the Offences against the State Act, 1939 is governed by the present Constitution. Moreover it quotes from Cross on
Evidence without adverting to the fact that Cross was referring to the British Constitution where Parliament is supreme whereas Statutes of the Oireachtas are subject to the Constitution and must be interpreted in the light of it.
The State (McCarthy) v. Lennon was again referred to by the Court of Criminal Appeal in the People v. Doyle (reported with the People v. Madden)  IR 336. The Judgment of O’Higgins, C.J. in that case contains a discussion of a hypothetical problem as to whether a person who had been arrested under Section 52 of the Offences against the State Act, 1939 and had given a true account of his movements in response to a demand made under Section 52 of that Act would be entitled to refuse to give a second account of his movements and whether, if he gave such second account, it would be admissible against him at his trial. But it is clear that the Chief Justice, relying on the decision in The State (McCarthy) v. Lennon considered that the first account which he had given of his movements would be admissible. The passage appears at pages 356/357 of the Report and reads as follows:-
“ ..Apart from the provisions of this section, any person detained by the Garda Síochána, whether under the provisions of the Act of 1939 or otherwise, would be entitled in law to refuse to answer any questions or to refuse to give any account of his movements or any information concerning the commission or intended commission of any criminal offence. Furthermore, apart from this section any person so detained would not, subject to the possibility of committing the offence of creating a public mischief or of misprision, be committing any criminal offence if the account he gave of his movements or the information he gave with regard to the commission or intended commission of a criminal offence were false or misleading. Therefore, the section must be construed as one which limits or restricts what otherwise is the right of a person to remain silent under certain circumstances and, in particular, his right not to incriminate himself Furthermore, it is a section creating a criminal offence and, on either basis, must be strictly construed: see The Emergency Powers Bill, 1976.
If a person, of whom is demanded whilst in custody under the provisions of the Act an account of his movements for a spec fled period, gives such an account which is complete and is neither false nor misleading, it would not appear to constitute an offence were he to refuse a request by the same, or another, member of the Garda Síochána to give again an account of his movements for the same period. The confining of the obligation of a person under s. 52 to the giving of a single account of his movements for any specified period, provided it is complete and true, does not prohibit questioning of that person by members of the Garda Síochána further or by way of repetition, though it does remove the sanction in the event of the person detained refusing to answer such further or repeated questions.
The former Supreme Court held in The State (McCarthy) v. Lennon (in respect of almost identical provisions contained in s. 15 of Part III of the schedule to Article 2A of the Constitution of the Irish Free State) that evidence obtained as a result of a request made by a member of the Garda Síochána was lawfully obtained and was admissible in any court, even though the request was made with the sanction that a refusal to comply with it constituted a criminal offence. Were it not for the express provisions in s. 52 of the Act of 1939, evidence obtained as the result of informing a person in detention that, if he did not give an account of his movements, he would be liable to imprisonment would clearly be inadmissible as a statement obtained under threat – quite apart from the fact that it would also constitute a breach of the Judges’ Rules. Therefore, if any of the statements made by the accused and challenged on his behalf had been made by him as a result of a repeated request for an account of his movements and he had complied on a previous occasion with a request from the same or another Garda, the question would undoubtedly arise as to whether such statements could receive the apparent protection of s. 52 of the Act of 1939, or whether they should be excluded as being involuntary.”
Finally, in The People v. Quilligan (No. 3)  2 IR 305 the Supreme Court rejected a challenge to the constitutionality of Section 30 of the Offences against the State Act as being unconstitutional but left open the question as to whether the right to silence or the protection against self-incrimination is an unenumerated right pursuant to the Constitution.
The relevant passage appears at p. 323 of the Report and reads as follows:-
“The Court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s.30, sub-s. 5 available to a member of the Garda Síochána in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise; constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the Court is satisfied that the challenge under this heading must fail. The Court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications. if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.”.
From the above discussion I draw the following conclusion. The decision in The State (McCarthy) v. Lennon is not a safe guide for any person seeking to establish the rights of the citizen under the Irish Constitution. That decision was based on an interpretation of a provision deriving from Article 2A of the Constitution of the Irish Free State which Article was designed to bypass all the constitutional guarantees contained elsewhere in that Constitution. The fact therefore that Section 52 of the Offences against the State Act may be almost identical in wording with Section 15 of Part III of the Schedule to Article 2A of the Constitution of the Irish Free State is of little relevance. The important distinction is that Section 15 was intended to be above constitutional challenge while Section 52 is subject to the Constitution. It appears to me that the better opinion is that a trial in due course of law requires that any confession admitted against an accused person in a criminal trial should be a voluntary confession and that any trial at which an alleged confession other than a voluntary confession were admitted in evidence against the accused person would not be a trial in due course of law within the meaning of Article 38 of the Constitution and that it is immaterial whether the compulsion or inducement used to extract the confession came from the Executive or from the Legislature.
The relevant provisions of Section 18 of the Companies Act, 1990 may be abbreviated to read as follows:-
There is no doubt that the quoted provision covers Civil Cases but it is necessary to address the problem of whether the quoted provision is broad enough to cover the admission of involuntary confessions in criminal cases. One could argue that if it was intended to remove the common law privilege against self-incrimination the Statute should have said so. On the other hand it can be argued that the Statute expressly preserves legal professional privilege (See S.23) but does not mention the common law privilege against self-incrimination. It is therefore possible to argue that had it been intended to preserve the common law privilege against self-incrimination the Statute would have said so.
However this line of reasoning becomes irrelevant once one is satisfied that Article 38 of the Constitution confers on accused persons a right not to have involuntary confessions accepted in evidence at a criminal trial and that this right is reinforced by the general provisions of Article 40.3 of the Constitution. The Companies Act, 1990 is a post constitutional Statute and must therefore be presumed to be constitutional. This means that in interpreting the Act the constitutional interpretation must be favoured. As Walsh, J., delivering the Judgment of the Supreme Court, put the matter in East Donegal Co-Operative Ltd. v. Attorney General  IR 317 at p. 341.-
“Therefore, an Act of the Oireachtas, or any provision thereof will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning”.
Accordingly the better interpretation of Section 18 in the light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, as a general principle, that a confession, to be admissible at a criminal trial must be voluntary. Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial Judge.
The Judgment in this case follows the decision in Heaney v. Ireland [19961 1 I.R. 580 insofar as that case decided that there may be circumstances in which the right of the citizen to remain silent may have to yield to the right of the State authorities to obtain information. It is not inconsistent with the decision Rock v. Ireland  2 ILRM 37 that there may be circumstances in which a Court is entitled to draw fair inferences from the accused having remained silent when he could have spoken. It follows The People v. Cummins  IR 312 insofar as that case decided that for a confession to be admissible in a criminal trial it must be voluntary.
In the course the submissions the question arose of what would be the position of evidence discovered by the Inspectors as a result of information uncovered by them following the exercise by them of their powers under Section 10. It is proper therefore to make clear that what is objectionable under Article 38 of the Constitution is compelling a person to confess and then convicting him on the basis of his compelled confession. The Courts have always accepted that evidence obtained on foot of a legal search warrant is admissible. So also is objective evidence obtained by legal compulsion under, for example, the drink driving laws. The Inspectors have the power to demand answers under Section 10. These answers are in no way tainted and further information which the Inspectors may discover as a result of these answers is not tainted either. The case of The People v. O’Brien  IR 142, which deals with evidence obtained in breach of the accused’s constitutional rights has no bearing on the present case. In the final analysis however, it will be for the trial Judge to decide whether, in all the circumstances of the case, it would be just or fair to admit any particular piece of evidence, including any evidence obtained as a result or in consequence of the compelled confession.
In these circumstances I would uphold the decision of the learned High Court Judge but would add the statement that a confession of a Bank official obtained by the Inspectors as a result of the exercise by them of their powers under Section 10 of the Companies Act, 1990 would not, in general, be admissible at a subsequent criminal trial of such official unless, in any particular case, the trial Judge was satisfied that the confession was voluntary.