THE SUPREME COURT

Murphy J.	Rec. No. 1998
Hardiman J.	No. 87/JR
Geoghegan J.	152 & 295/99

Between:

DEREK CARLTON

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

THE GARDA SIOCHANA COMPLAINTS BOARD

Respondents/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 7th day of April, 2000 (nem. diss.)

The appeal and cross‑appeal before this Court originate from a complaint made by the Applicant/Respondent (“Mr. Carlton”) in respect of alleged misconduct on the part of members of the Garda Siochana towards him and the complaint was referred to The Garda Complaints Board established under the Garda Siochana (Complaints) Act, 1986. Section 6 (1) of that Act reads as follows:- [*2]

(1) (a)	“The Commissioner shall appoint a member of The Garda Siochana (in this Act referred to as an investigating officer)- 
	(i) not below the rank of Superintendent, or
(ii) if he considers that the circumstances so warrant, of the rank of Inspector,
 to investigate an admissible complaint (other than a complaint resolved under Section 5 of this Act) and a person so appointed shall carry out the investigation either, as he thinks fit, alone or with the assistance of such other members as he may determine.

(b)	Where it appears to an investigating officer that the conduct alleged in a complaint may constitute an offence, the law and practice applicable to the investigation of offences shall, subject to Section 4 (6) of this Act, apply in relation to the investigation.

(c)	The Board may prescribe general principles to be observed in the appointment of investigating officers under paragraph (a) of this sub‑section”.

Before explaining the factual background to these proceedings I think it useful at this stage to cite also Section 12 of the same Act. That Section reads as follows:- [*3]

(1)	 “A person shall not disclose confidential information obtained by him while performing functions as a member of a Board, a tribunal or the Appeal Board, or as a member of the staff of the Board, unless he is duly authorised to do so.

(2)	In this Section-
'confidential' means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description; 'duly authorised’ means, in the case of a member of the Appeal Board, authorised by the Appeal Board and, in any other case, authorised by the Board.

(3)	A person who contravenes sub‑section (1) of this Section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £700 or to imprisonment to a term not exceeding six months or to both”.

In an Affidavit of Mr. Sean Hurley, Chief Executive of the Garda Siochana Complaints Board sworn the 26th June, 1998 and filed in these proceedings, Mr Hurley states that pursuant to Section 6 (1) (a) of The Garda Siochana Complaints Act, 1986, the Board may prescribe general principles to be observed in the appointment of investigating officers and that it did so in 1991. [*4] He then goes on to exhibit a copy of a circular dated 1st July, 1991 signed by an Assistant Commissioner and directed to each Chief Superintendent and which as I understand Mr. Hurley's evidence was intended to reflect the view of the Board. The Memorandum read as follows:-
“Re: Garda Siochana (Complaints) Act, 1986 ‑ investigation of complaints under Section 6(1) (a).
In future the following general principles will be observed in the appointment of investigating officers.
 An officer or Inspector shall not be appointed to investigate a complaint where: 
 	
(i)	He is directly involved in the incident complained of, or involved in a related prosecution; or 
(ii)	he is based in the same district as the member, or the majority of members, under investigation.
 The Complaints Board has expressed concern at the pattern of appointment of investigating officers.  The Board points out in its triennial report, that the great majority of investigating officers are Inspectors rather than Superintendents, whereas the relevant provision in the Act clearly weights in favour of Superintendents carrying out the investigation. In future, when appointing an investigating officer in accordance with Section 6 (1) (a) of the Act this provision will be kept in mind”.

[*5] The investigating officer appointed by the Commissioner was an Inspector attached to the Waterford Garda Station and therefore the Waterford District. At least two of the guards complained about were based at Waterford Garda Station. The identity of these two guards was discovered in the course of the investigation as Mr. Carlton had not been able to name them but merely to give some description. He had however named two other guards who were involved in the complaint and both of those were from the Dungarvan district. It appears therefore that the Commissioner did not knowingly appoint an Inspector who was based in the same district as members under investigation. At all material times, however, it has been Mr. Carlton's case that either an investigating officer from the Waterford should not have been appointed in the first place or if such appointment had been made his investigation should have been discontinued and a new and appropriate investigating officer appointed. It has also been argued on and off throughout the proceedings, but I think very much as a subsidiary matter, that a Superintendent rather than an Inspector ought to have been appointed. Although this argument looms large in the judgment of the High Court which may indicate that it was a major plank of the oral submissions it is not even mentioned in the Statement of Grounds and strictly speaking ought not to have been entertained as an argument without an amended Statement of Grounds being filed with permission of the court. However there has been acquiescence in this point being pursued and I will [*6] deal with it in due course.  I merely want at this stage to convey the impression I am under from reading the documentation that for a long time the main complaint of Mr. Carlton was of the location at which the investigating officer was based and not his rank.

Shortly before the six month period for instituting summary proceedings had expired a prosecution was initiated against Mr. Carlton for assaulting and obstructing members of the force and it emerged that it was intended to use for the purposes of that prosecution copies of statements taken from members of the force by the investigating officer. It was argued on behalf of Mr. Carlton that this was not permissible and indeed was unlawful having regard to the confidentiality obligations in Section 12 as cited above, it being suggested that the investigating Inspector effectively stood in the shoes of the Board. None of this appears in any Statement of Grounds or amended Statement of Grounds though in the Affidavit grounding the original ex parte application there is a reference to a certain sequence of events being capable of providing reasonable suspicion that one of the Gardai, the subject matter of the complaint, knew of the outcome of the complaint prior to Mr. Carlton being informed. It would appear. however, that the issue as to whether the intended use of statements taken in the course of the Garda Complaints investigation could be used for the [*7] purposes of the prosecution notwithstanding Section 12 of the Act was fully argued without protest in the Court below.

Mr. Carlton obtained leave to bring judicial review proceedings by an Order of the High Court (Barr J.) made the 23rd. February, 1998. That Order recites that Counsel for the Applicant had sought leave for judicial review for the several Orders as listed in the document headed “Ex parte Application” but went on to order “that the applicant do have leave to apply for a review of the legality of the procedures adopted by the second‑named Respondent in relation to the matter of the investigation herein and for such ancillary Orders relating thereto in that regard as to the Court shall seem meet by way of application for Judicial Review”. Mr. Carlton was then required by the Order to serve an originating Notice of Motion together with copies of a grounding Statement in accordance with the rules of court. Curiously no such Statement of Grounds appears to have been prepared at the stage of the application for leave which of course was a gross breach of the Rules. But as I read the terms of the Orders which had been sought, the complaint in relation to the appointment of the investigating officer was based on the district to which he was attached rather than the rank. The leave given was couched in such wide terms that it is difficult to discern what precise remedies Mr. Carlton was permitted to seek. If one just reads the operative part of the Order it might be assumed that only the [*8] Garda Complaints investigation could be reviewed and not the District Court proceedings. But as the Order does not set out the grounds for leave which it ought to have done and does recite the seeking of an Order of Prohibition, the interpretation which the trial Judge took that an Order of Prohibition might be covered by the expression “and for such ancillary Orders relating thereto in that regard as the Court shall seem meet” might indeed be open. In the event the High Court (Macken J.) made the following Orders:-

1)	An Order of Prohibition prohibiting the Judge of the District Court of Dungarvan or a District Judge at any other District Court having seisin of the Summonses entitled DPP v. Derek Carlton and bearing the date the 22nd day of December, 1997 or from in any way dealing with the said four Summonses other than by strike out insofar as those Summonses are based on statements made in breach of the findings of the Court on confidential information. 
2)	An Order quashing the appointment of Inspector Delaney “by the first‑named Respondent” (this was amended later to refer to the appointment by the Commissioner in an Order which on consent joined the Commissioner in the proceedings).

It is clear from the reserved judgment that Macken J. was quashing the appointment both on the grounds that the Inspector was based in the same [*9]  division and in the case of some of the guards in the same district as the guards complained of and on the basis that an Inspector rather than a Superintendent had been appointed. The Notice of Appeal by the Respondents/Appellants in its original form sought to set aside particular findings of the trial Judge in her judgment rather than the actual Orders that she made. The following matters were appealed against in that Notice.
(a)	The finding that no explanation was given for the appointment of an
	Inspector as an investigating officer pursuant to the provisions of Section
	6 of the Garda Siochana (Complaints) Act, 1986.
(b)	The rejection of the ground for the appointment of an Inspector that there
	was a lack of personnel at the rank of Superintendent.
(c)	The finding that the investigating officer was in the same position as a
	member of the Board or a member of staff of the Board in relation to the
	confidentiality requirements under Section 12.
(d)	The finding that the statements obtained from the investigating officer by
	Detective Sergeant John Hunt for the purpose of the prosecution were
	not expressed to be confidential for the purposes of Section 12 of the
	1986 Act.

The Notice of Appeal did not by its express terms seek either an Order setting aside the Order quashing the appointment of the Inspector or an Order setting [*10] aside the Order of Prohibition. In fact it was conceded by Counsel on behalf of the Respondents/Appellants that an Inspector of the Waterford District ought not to have been appointed and therefore his reinstatement was not being sought. At an early stage a decision was taken not to appeal the Order of Prohibition. For this reason the appeal as originally framed was of doubtful validity. However there was then a strange turn of events. The Director of Public Prosecutions decided to have the existing Summonses in the District Court struck out and to have new Summonses issued in identical terms based on the same original application for the issue of a Summons. The view was apparently taken by the DPP that the Order of Prohibition could relate only to the existing Summonses and not to any substituted Summonses. On a literal reading of the Order that view was supportable. When Mr. Carlton's legal advisers realised what was happening a notice of cross‑appeal was lodged and served. The notice of cross‑appeal seeks an Order setting aside the Order of Prohibition made by the trial Judge and substituting an Order of Prohibition in the following terms: 
“An Order prohibiting the Judge of the District Court of Dungarvan or any other Court from hearing or otherwise dealing with any proceedings taken by the DPP or any member of the Garda Siochana against Derek Carlton in respect of offences alleged to have occurred on the 27th day of June, 1997 other than by strike out”.

[*11] The notice of cross‑appeal refers to the Order of Prohibition as being the Order made at p. 19 of the judgment but of course the real Order as such is the Order as drawn up. The cross‑appeal seeks a complete prohibition on substituted Summonses without any limitation as to whether they are based on the confidential information. There is no doubt that at page 19 of her judgment Macken J. did say that she was prepared to make an Order of Prohibition against the dealing in any way with the four Summonses other than by strike out “insofar as those Summonses are based on statements made in breach of my findings on confidential information”. However it would seem to me doubtful that she intended that the words in quotation marks were to be included in the actual Order itself. I think rather that they represented the reason why she was making the Prohibition Order. Insofar as the Order as drawn up included those qualifying words I am inclined to think that it is incorrectly drawn up. For that reason there is justification in the cross‑appeal seeking an unqualified prohibition. But whether I am right or wrong about that I think that it is certainly against the clear spirit of the Order of the learned High Court Judge and against her intention that the statements in controversy could be used in proceedings based on fresh Summonses. I will however return to the question of what Order should be made on the cross‑appeal after I have dealt with the application by the Respondents to amend their Notice of Appeal. The amendment for which [*12] permission is sought is to insert two additional reliefs namely an Order that in all the circumstances of the matter the appointment of an Inspector as the investigating officer was a proper appointment to make and an Order setting aside the Order of Prohibition and adding three new grounds of appeal, these are:-
1)	That the trial Judge erred in fact and in law in holding that the appointment of an Inspector was wrongful in the absence of any evidence that such appointment was flawed.
2)	That the trial Judge erred in law and in fact in making an Order of Prohibition against the District Judge having seisin of DPP v. Derek Carlton by reason of the learned District Judge not being a party to the proceedings herein.
3)	That the trial Judge erred in holding that the prosecution of the matter of DPP v. Derek Carlton should be restrained on the grounds that it was based on confidential documents given to the investigating officer.

The motion to amend the Notice of Appeal is grounded on an Affidavit of Elizabeth Mullan, a Solicitor of the Chief State Solicitor's office.  She refers to the original Notice of Appeal dated the 18th April, 1999. She says that subsequent to the filing of that Notice of Appeal the Respondents instructed her with further concerns they had in regard to the judgment and Order and that [*13] these instructions were received on the 7th December, 1999. I am of opinion that this Court should not grant leave to file the amended Notice of Appeal for the following reasons. It has been conceded by Counsel for the Defendants that an Inspector from the same District as some of the guards complained about ought not to have been appointed and that therefore the Order of the High Court quashing the appointment should remain in place. I do not think that an appeal should be permitted in respect of one particular argument against the appointment if in fact it is accepted that the appointment has to be quashed on foot of another argument. However as the question of whether a Superintendent rather than an Inspector should have been appointed was obviously strongly aired in the High Court and has been further argued in this Court, I will make some observations on it before I end this judgment. But for the reasons which I have indicated I do not think it appropriate that an amended Notice of Appeal on this ground be permitted.

Still less do I think that an amended Notice of Appeal should be permitted for the purpose of seeking the other additional Order. It had been quite clear that the Order of Prohibition was not being appealed against. The background to this situation is slightly complicated. After the learned High Court Judge had made the Order quashing the appointment of Inspector Delaney to investigate the complaints it was realised by the Respondents that [*14] such an Order should not have been made unless the Commissioner of An Garda Siochana was a party to the proceedings because it was he and not either the Director of Public Prosecutions or the Garda Siochana Complaints Board who would have made the appointment. On the 14th June, 1999 Macken J, made an Order varying her earlier Order of the 11th March, 1999 by ordering as follows: 
“The Court doth make an Order quashing the appointment Of Inspector Delaney by the Notice Party and made in or about the month of July, 1997 to investigate the complaints made by the Applicant and recorded on the 7th day of July, 1997 at Dungarvan Garda Station”. 
The application seeking that amended Order was grounded on an Affidavit of Michael Brady, also a Solicitor of the Chief State Solicitor's office, but what he said in paragraph 4 of that Affidavit, is of some significance and is heavily relied on by Mr. Carlton in opposing the amended Notice of Appeal. I think it appropriate to quote the paragraph in full. 
“It is respectfully submitted that in order to give effect to the intention of this honourable Court, it is necessary to join the Commissioner of An Garda Siochana as a Respondent and that the said Order of certiorari be made against the said Commissioner who would become, were this honourable Court be pleased to grant the [*16] application herein, the third‑named Respondent. It is also intended to appeal certain portions of the judgment of this honourable Court as both the second‑named Respondents and the Commissioner of An Garda Siochana wish clarification of certain matters arising out of the judgment of this honourable Court which will affect a number of complaints currently before the Garda Siochana Complaints Board. In the absence of the relief prayed for herein, such an appeal would not be possible. The said appeal will not affect the substantive finding herein that the Applicant is entitled to an Order quashing the finding of the Garda Siochana Complaints Board dismissing his complaint; nor will the appeal affect in this matter the manner of proceeding with the prosecution in the proceedings presently before the District Court under the title of DPP v. Derek Carlton”.
In a replying Affidavit of Mr. Gerard McCullagh, Solicitor for the Applicant, Mr. McCullagh points out that on the 12th May, 1999 on the application of the DPP, the Summonses against the Applicant were struck out at Dungarvan District Court. As far as he was concerned the actions of the Respondents up to that point were consistent with what had been stated in paragraph 4 of Mr. Brady's Affidavit. But he goes on to explain what then happened and there is no dispute about this. On the 17th August, 1999 the DPP caused to be issued four new Summonses based on the original [*17] application, and in identical terms to the Summonses struck out and Mr. McCullagh expresses the view in his Affidavit that that action on the part of the. DPP was as he puts it:‑ 
“an attempt to use the Court system to deprive Derek Carlton of the protection granted him by the High Court, namely the prohibition of further proceedings based on the Summonses and was unfair, contrary to natural justice, an abuse of process”. 
Mr. McCullagh goes on to aver that the proposed amendments to the, Notice of Appeal were directed towards the same end and were to use his words  “completely at odds with the RespondentslAppellants statement to the High Court by Counsel and in the Affidavit of Michael Brady, Solicitor, which conveyed the impression that the appeal was not against the substantive judgment and would not affect Mr. Carlton's position and was being brought for the purposes of seeking clarification with problems encountered by the Garda Siochana Complaints Board with regard to ongoing investigations where the investigating officer was an Inspector rather than a Superintendent”.

While there is no evidence in my view that there was any conscious intention on the part of the Respondents to abuse the process of the Court I think nevertheless that the Respondents were interpreting the Prohibition Order too narrowly in thinking that new prosecutions could be instituted on identical [*18] Summonses and using the same evidence forbidden by the learned High Court Judge. If there was no question of amending the Notice of Appeal there would be a case for this Court making an Order on the cross‑appeal though not in the exact form sought preventing the new prosecutions. But as I have already indicated, I take the view that the amendments ought not to be permitted. The amendments sought are very substantial and change the nature of the appeal. They are sought far too late and they are basically unfair to the Applicant who was undoubtedly led to believe that the prosecutions would not be going ahead. The Respondents have in their proposed amended Notice of Appeal raised a good procedural point in that an Order of Prohibition ought not to be made against a Judge who is not in some form a party to the proceedings. But in practice the Judge or potential Judge would have had no interest in this case in arguing against an Order of Prohibition and at any rate I see no reason why in lieu of an Order of Prohibition an injunction should not be made against the DPP restraining the DPP from proceeding with prosecutions against the Applicant arising out of the events which gave to rise to the complaint. I would propose therefore that the cross‑appeal would be allowed to the extent that this Court would make an injunction of that kind. It should of course be made absolutely clear that in granting such an injunction the Court would not be in any way approving the Order of Prohibition as if there had been a [*19] substantive appeal before this Court in relation to it. The only appeal which arises is a procedural one.

Notwithstanding the view I take that leave to file the amended Notice of Appeal should be refused I think it appropriate to express my views on some of the matters of concern which in practice gave rise to the proposed amendments. It would seem to me that the Respondents were essentially concerned about two matters because of their implications for future cases. These were:- 

1)	What discretion does the Commissioner have to appoint an Inspector rather than a Superintendent to investigate complaints under the 1986 Act? 
2)	Does the confidentiality requirement under Section 12 of that Act have the effect that statements taken by the investigating officer cannot be used for the purposes of prosecution?

On the first point, I think that I should go no further than commending the Memorandum of the Assistant Commissioner being exhibit “SH 1” in the first Affidavit of Mr. Sean Hurley, Chief Executive of the Garda Siochana Complaints Board. It is perfectly clear from a reading of the section that the normal practice should be the appointment of a Superintendent but there may be good reasons for appointing an Inspector in particular cases and I do not [*20] think that this Court should attempt to define those reasons. As to whether in a case where by a wrong exercise of the discretion an Inspector was appointed rather than a Superintendent, the investigation can be quashed in Judicial Review proceedings I will express no opinion and leave it to a case where it genuinely arises. In this case it is accepted that the appointment had to be quashed because of the district to which the Inspector was attached.

The second of the two points of concern which are identified is the more important one. The fact that information or documents may be held under an obligation of confidentiality whether that obligation arises from statute or in some other way does not of itself mean and has never been held to mean that such information or documents cannot be used in evidence in a criminal prosecution. If there was ever any doubt about this proposition it is has been clearly reaffirmed by the Supreme Court in Skeffington v. Rooney, [1997] 2 ILRM 56. It is irrelevant whether the investigating officer stands in the shoes of “a member of the Board” or “a member of the staff of the Board” or neither for the purposes of the confidentiality obligation under Section 12. In any event, the statements taken in the course of an investigation can certainly be used for the purposes of a criminal prosecution subject to the normal rules of privilege. Furthermore the question of whether particular evidence might be admissible or not at a criminal trial is a matter for the trial Judge and not the [*21] proper subject matter of an Order of Prohibition made in advance by the High Court under its supervisory jurisdiction. But all of these views must necessarily be obiter dicta as there is no appeal before this Court from the Order of Prohibition except the cross‑appeal seeking an alteration in the terms of the Order. I have already indicated how I think that should be dealt with. But I would reiterate that the cross‑appeal is procedural only and that the form of Order I am proposing is appropriate only because there is no permitted substantive appeal before this court against the Order of Prohibition. If there had been, I would have been in favour of allowing it for the reasons which I have indicated. There is no basis for preventing whether by prohibition or injunction a prosecution involving reliance upon information obtained in breach of a statutory duty of confidentiality. As the particular statutory duty was not breached in the present case nor, if it had been, would such a breach necessarily vitiate the prosecution, I do not believe that the restraining Order should have been made in the first instance. Having regard however to the undertaking given on behalf of the State I am satisfied for the reasons which I have already given that it would be unjust to permit the amendment to the Notice of Appeal so as to have the restraining Order set aside.

As the Appeal on its face relates merely to particular findings made in the judgment of the learned High Court Judge rather than against any actual [*22] Orders she made, I take the view that no Order should be made by this Court on the Appeal but the injunction as I have suggested should be made on the cross‑appeal. The application to amend the Notice of Appeal should be refused.