The Supreme Court allowed an appeal by the sole member of the Tribunal of Inquiry into Complaints concerning some Gardaí of the Donegal Division and restored the tribunal’s order requiring TD Brendan Howlin to disclose documents, including telephone records, connected with confidential information he had received. The court dismissed Howlin’s notice to vary the appeal decision.
The tribunal had ordered discovery of the material. Howlin resisted, saying his informant had not given permission for the source’s identity to be disclosed. The tribunal treated the documents as private papers relating to communications from members of the public to a TD in connection with his parliamentary work. The High Court later quashed the discovery order, finding that the Dáil committee’s assertion of privilege was a valid exercise of its power to protect members’ private papers.
In a judgment delivered on 20 December 2005, Mr Justice Geoghegan agreed with the tribunal and the High Court that Article 15.13 of the Constitution did not protect the information: it had not been uttered by Howlin in the Dáil. He also concluded that the Dáil’s powers under Article 15.10 had not been exercised in the required way. The Houses had made no rules or standing orders governing protection of members’ private papers, and the committee could not create an ad hoc privilege for particular documents by instructing counsel to claim it.
The judge said it was unnecessary to decide finally whether Article 15.10 could create a privilege against third parties in court or tribunal proceedings. He said his inclination was that it could not, and rejected the argument that the provision created a self-executing privilege.
The remaining issue was public interest immunity, described in the judgment as common law privilege. The tribunal had considered that the information might show that people had been wrongly convicted after evidence was planted or fabricated. It concluded that scrutiny by the tribunal outweighed keeping the informants’ identities confidential. Geoghegan agreed with that balancing decision and with the application of the “innocence at stake” principle. He said the Supreme Court could decide the issue without sending it back to the High Court.