Commission's private nature is price public pays for speed and lower cost
The ongoing public controversy surrounding the extent to which the Garda Commissioner is entitled to comment on how her legal representatives treated Sgt McCabe at the O'Higgins Commission has focused attention on one of the key aspects of commissions of investigation, namely that they conduct their hearings in private.
The legislation governing the O'Higgins Commission, the Commissions of Investigation Act 2004, makes it crystal clear that it is a criminal offence for any person, including the Garda Commissioner, to disclose or publish any evidence given to the Commission during the course of its private hearings.
The penalties for any such disclosure or publication are significant. On summary conviction, the penalty is a fine of up to €3,000 or imprisonment for a term not exceeding 12 months or both. On conviction on indictment the penalty is a fine not exceeding €300,000 or imprisonment for a term not exceeding five years, or both.
The suggestion that it is simply a question of legal privilege which can be waived is superficially attractive. However, it ignores the fact that if the waiver of privilege involves the disclosure or publication of evidence, which is defined in the legislation as "any expression, orally, in writing or otherwise, of an opinion, belief or intention," then an offence has been committed.
If the then Government had decided to establish Mr Justice O'Higgins' investigation as a tribunal of inquiry rather than as a commission of investigation, then this controversy would not have arisen, since tribunals of inquiry conduct their hearings in public. The legal strategy adopted by the Garda Commissioner and the other 83 witnesses who were legally represented before the O'Higgins Commission in relation to the motivation of Sgt McCabe or on any other issue would then have been clear for all present to see and report upon.
The private nature of commissions of investigation is the price the public paid for enabling Mr Justice O'Higgins to reach his objective of reporting on the 12 significant issues of public concern contained in his terms of reference in a faster and cheaper manner than if a tribunal of inquiry had been established.
When he presented the Commissions of Investigation legislation to Dáil Éireann on March 4 2004, the then Minister for Justice, Equality and Law Reform, Michael McDowell, stated that commissions of investigation would provide for a speedier and more cost-effective investigation of issues of public concern without compromising or encroaching upon the proper conduct of an investigation. The minister also recognised that the commission of investigation model was designed to supplement rather than replace other types of investigative model such as tribunals of inquiry. The practice of commissions of investigation since 2004 has shown that the private nature of their hearings is also more conducive to maintaining an inquisitorial as opposed to an adversarial approach to the investigation as a whole. What this means is that commissions of investigation do not operate as a simple copies of the normal court process. They have also operated well in encouraging witnesses to come forward who might otherwise not have done so if they would have had to give evidence in public.
The current debate on how Sgt McCabe was treated should therefore cause us to consider a broader point of principle. If the public is to repose trust and confidence in public institutions such as An Garda Siochana should all inquiries into the conduct of the force be held in public? In other words, should the public have the right not only to read the final report of the inquiry but to follow developments before the inquiry as they develop on a day by day basis? Mr Justice Lynch answered this question in the affirmative when he chaired the Kerry Babies Tribunal of Inquiry over 30 years ago, when he remarked: "How can an inquiry, sitting in public, dispel public disquiet, if crucial evidence is taken in private?"
Darren Lehane is a barrister