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1. 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]

2. 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]

3. 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:-

4. 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.

5. 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:-

6. 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.

7. Inspector as an investigating officer pursuant to the provisions of Section

8. Detective Sergeant John Hunt for the purpose of the prosecution were

9. 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:

10. 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.

11. 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:

12. 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.

13. 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:-

14. 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”.

15. 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.

16. 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:-

17. 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.

18. 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.

19. 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.