Section 35

Evidence generally to be given in private

1. (1) The Commission shall conduct its inquiry in private unless—

(a) a witness requests that all or part of his or her evidence be heard in public and the Commission accedes to that request, or

(b) the Commission is satisfied that it is desirable in the interests of both the inquiry and fair procedures to hear all or part of the evidence of a witness in public.

(2) Where the evidence of a witness is heard in private—

(a) the Commission may give directions as to the persons who may be present while the evidence is heard,

(b) legal representatives of persons other than the witness may be present only if the Commission—

(i) is satisfied that their presence would be in keeping with the purposes of the inquiry and would be in the interests of fair procedures, and

(ii) directs that they be allowed to be present,

(c) the witness may be cross examined by or on behalf of any person only if the Commission so directs, and

(d) any member of the Commission may, orally or by written interrogatories, examine the witness on his or her evidence.

(3) A person (including a member of the Commission) shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private, except—

(a) as directed by a court,

(b) to the extent necessary for the purposes of paragraph 2, or

(c) to the extent otherwise necessary in the interests of fair procedures and then only with the written consent of the Commission.

(4) Subparagraph (3) shall not operate to prohibit the publication in a report under this Act of any facts established by the Commission on the basis of evidence received in private.

(5) A person who contravenes subparagraph (3) shall be guilty of an offence.

Commission to disclose substance of evidence to witnesses

2. (1) Subject to subparagraph (2), the Commission shall disclose to a person—

(a) who is directed to attend as a witness before the Commission,

(b) who attends voluntarily to give evidence to the Commission, or

(c) about whom evidence is given to the Commission,

the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give or has given to the Commission.

(2) Subparagraph (1) does not require the disclosure of the source of any evidence given or document produced by a witness while giving evidence in private under paragraph 1, unless the Commission considers that, in view of the purposes of the inquiry or in the interests of fair procedures, the source should be disclosed.

(3) The Commission shall give a person to whom it discloses the substance of evidence under subparagraph (1) an opportunity to comment by written or oral submissions on the evidence.

Duty to inform witnesses of Commission’s powers etc.

3. (1) Before a person gives evidence to the Commission, whether voluntarily or on being directed by it to do so, the Commission shall give the person a written statement—

(a) specifying the Commission’s powers under paragraphs 6, 7 and 14, and

(b) informing the person that, if he or she does not voluntarily co-operate with the Commission or withdraws co-operation, the Commission may exercise any of those powers as it considers necessary.

(2) If no legal representative is present to advise a witness, the Commission shall advise the witness of his or her legal rights and obligations while giving evidence on oath or affirmation.

(3) The duties imposed on the Commission under this paragraph may be performed by any member of the Commission.

Power to administer oaths etc.

4. (1) A witness who attends before the Commission to give evidence may be required to give evidence on oath or affirmation.

(2) Any member of the Commission may administer any oaths or take any affirmations necessary for the purposes of an inquiry.

Commission to establish or adopt rules and procedures

5. (1) The Commission may, having regard to the need to observe fair procedures, establish or adopt rules and procedures for—

(a) receiving and recording evidence, and

(b) receiving submissions.

(2) The rules and procedures of the Commission may, among other things, specify the form in which and the means by which evidence or submissions may be received by it.

(3) The Commission shall make copies of its rules and procedures available to persons likely to be affected by them.

Powers relating to witnesses and documents

6. (1) For the purposes of an inquiry, the Commission may do any or all of the following:

(a) direct in writing any person to attend before the Commission on a date and at a place and time specified in the direction and there to give evidence and to produce any document that is in the person’s possession or power and is specified in the direction;

(b) direct a witness to answer questions that it believes to be relevant to a matter that is the subject of the inquiry;

(c) examine a witness on oath or affirmation or by use of a statutory declaration or written interrogatories;

(d) examine or cross examine any witness to the extent the Commission thinks proper in order to elicit information relevant to a matter that is the subject of the inquiry;

(e) direct a witness to produce to the Commission any document that is in his or her possession or power and is specified in the direction;

(f) direct in writing any person to—

(i) provide the Commission with a list, verified by affidavit, disclosing all documents in the person’s possession or power relating to a matter that is the subject of the inquiry, and

(ii) specify in the affidavit any of the listed documents that the person objects to producing to the Commission and the basis for the objection;

(g) direct in writing any person to send to the Commission any document that is in the person’s possession or power and is specified in the direction;

(h) give any other directions that appear to the Commission to be reasonable.

(2) The powers of the Commission under subparagraph (1) may be exercised by any member of the Commission.

(3) A person who attends, whether voluntarily or otherwise, before the Commission is entitled to be paid by the Commission such amount in respect of the expenses of his or her attendance as is determined in accordance with guidelines prepared by the Commission in consultation with the Minister, with the consent of the Minister for Public Expenditure and Reform.

(4) The rules of court relating to the discovery of documents in proceedings in the High Court apply with any necessary modifications in relation to the disclosure of documents under subparagraph (1)(f).

(5) Where a person does not comply with a direction given by the Commission under this paragraph, the Commission may make an application to the High Court in accordance with paragraph 11.

(6) A person who, without reasonable excuse, fails to comply with a direction under subparagraph (1)(a) to attend before the Commission shall be guilty of an offence.

(7) The failure of a person to comply with a direction under subparagraph (1)(a) —

(a) may be punished as a contempt following an application under paragraph 11 even though it could be punished as an offence, and

(b) may be punished as an offence even though it could be punished as a contempt,

but the person is not liable to be punished twice.

(8) In subparagraph (3) ‘ ‘expenses’ ’ does not include any legal costs.

Powers to direct certain persons to pay costs

7. (1) If, as a result of a person—

(a) failing, without reasonable excuse, to comply with a direction under paragraph 6, or

(b) otherwise obstructing an inquiry,

the Commission incurs costs that it would not otherwise have incurred, it may, in writing, direct the person to pay to the Commission those costs, including legal costs as taxed by a Taxing Master of the High Court and costs arising from any delay in completing the inquiry.

(2) If any person who attends before or gives evidence to the Commission is adversely affected as a result of an act or omission referred to in subparagraph (1), the Commission may—

(a) on its own initiative, or

(b) at the request of the person adversely affected,

direct the person whose act or omission had that result to pay to the person adversely affected all or part of any costs (including legal costs as taxed by a Taxing Master of the High Court) that he or she incurred as a result of the act or omission.

(3) A direction of the Commission to pay costs under subparagraph (1) or (2) shall not take effect until it is confirmed by the High Court on application to it by the Commission.

(4) On application for an order under subparagraph (3), the High Court may—

(a) make an order confirming the direction with or without modification, or

(b) refuse to make such an order.

(5) Subject to subparagraph (3), any sum payable pursuant to a direction under this paragraph may be recovered as a simple contract debt in any court of competent jurisdiction.

(6) A person may be directed to pay costs under this paragraph even though the act or omission that resulted in the direction is punishable as contempt or as an offence under this Act, and the direction does not prevent the person being punished for contempt or the bringing of proceedings in respect of the offence.

Offence of making false statement

8. Any person who, while giving evidence pursuant to an inquiry, makes a statement material in the inquiry concerned that the person knows to be false or does not believe to be true shall be guilty of an offence.

Evidence given to Commission not admissible in certain proceedings

9. None of the following is admissible as evidence against a person in any criminal or other proceedings, other than in proceedings for an offence under paragraph 8:

(a) a statement or admission made by the person to the Commission;

(b) a document given or sent to the Commission pursuant to a direction or request of the Commission to the person;

(c) a document specified in an affidavit of documents made by the person and given to the Commission pursuant to a direction or request of the Commission.

Privileges and immunities of witnesses

10. A person who gives evidence to the Commission or who produces or sends documents to the Commission as directed by the Commission—

(a) has the same immunities and privileges in respect of that evidence or those documents, and

(b) is, in addition to the penalties provided by this Act, subject to the same liabilities,

as a witness in proceedings in the High Court.

Application to court in event of failure to comply with certain requirements

11. (1) If it appears to the Commission that a person has failed to comply with a direction under paragraph 6, the Commission may apply to the High Court for an order requiring the person to comply with the requirement.

(2) On application to it under subparagraph (1) the High Court may, if satisfied as to the failure of the person concerned to comply with the requirement concerned, make the order directing that person to comply with the requirement unless the Court is of opinion that the requirement in question purports to require the person concerned to—

(a) produce a document or thing, or

(b) furnish information,

for which the person is entitled to claim legal professional privilege, in which case it shall set aside the requirement.

Guidelines relating to recovery of legal costs necessarily incurred by witnesses

12. (1) With the consent of the Minister for Public Expenditure and Reform and after consulting with the Commission, the Minister shall prepare general guidelines (in this Act referred to as “legal costs guidelines”) concerning the payment by the Commission to witnesses of legal costs necessarily incurred by them in connection with an inquiry.

(2) For the purposes of this paragraph and paragraph 13, legal costs are necessarily incurred by a witness in connection with an inquiry by the Commission if—

(a) the good name or conduct of the witness is called into question by any evidence received by the Commission, or

(b) other personal or property rights of the witness are at risk of being jeopardised as a result of any evidence received by the Commission.

(3) The legal costs guidelines may—

(a) restrict the types of legal services or fees for which payment may be made, and

(b) otherwise limit (including by specifying maximum amounts) the extent to which legal costs may be paid.

(4) Before evidence is given to the Commission, the Commission shall give the witness a copy of the legal costs guidelines prepared by the Minister.

Requests for recovery of costs

13. (1) The Commission may, if it is satisfied of the matters specified in subparagraph (2), pay all or part of the legal costs necessarily incurred by a witness in connection with its inquiry as may be agreed between the Commission with that person or, in default of agreement, such costs as may be taxed by a Taxing Master of the High Court.

(2) The Commission shall be satisfied that—

(a) the legal costs were necessarily incurred,

(b) the level and amount of those costs are reasonable, and

(c) the payment comes within the legal costs guidelines.

(3) For the purpose of satisfying itself as to the matters specified in subparagraph (2), the Commission shall consider all relevant factors, including—

(a) the nature, complexity and extent of the evidence given to the Commission by the witness,

(b) the nature, complexity and volume of any documents or list of documents provided by the witness to the Commission,

(c) whether evidence given by or relating to the witness was given in private or in public,

(d) whether the witness was cross examined by or on behalf of other persons,

(e) whether there has been any improper failure by the witness to co-operate with the Commission in its inquiry and, if so, the degree of failure, and

(f) any potential consequences for the witness arising from the publication of the Commission’s report.

(4) After considering all relevant factors, the Commission may direct in writing that a witness be paid less than the maximum amount provided for in the legal costs guidelines.

(5) If a witness who has incurred substantial expenses (other than legal costs) because of—

(a) the nature, volume or location of the documents produced by the witness,

(b) the location outside the State from which the witness travelled to attend before the Commission, or

(c) any other factor not within the control of the witness,

requests payment of all or part of those expenses, the Commission may, on being satisfied that they were necessary in the circumstances, direct in writing that such amount of the expenses as it considers reasonable be paid by it as may be agreed between the Commission and that person or, in default of agreement, such costs as may be taxed by a Taxing Master of the High Court.

(6) A written direction of the Commission shall be signed by a member of the Commission.

Other powers relating to inquiries

14. (1) Upon the application in that behalf of a member of staff of the Commission to the District Court, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that there has been a failure to comply with a requirement under paragraph 6 in respect of any documents or things and such documents or things are on any premises (including a dwelling), issue a warrant authorising the person named on the warrant, accompanied by such members of staff of the Commission or members of An Garda Síochána as may be necessary, at any time or times within one month after the date of issue of the warrant to—

(a) enter the premises (if necessary by the use of reasonable force),

(b) search the premises and inspect and take possession of all books, documents, records or things as appear to be the documents or things that are the subject of a requirement under paragraph 6(1)(f), and

(c) take all necessary measures to ensure that such documents or things are preserved and not interfered with.

(2) Subject to subparagraph (3), any documents or things of which possession is taken in accordance with a warrant under this paragraph may be retained until the completion of the inquiry by the Commission.

(3) If within the period specified in subparagraph (2), proceedings for an offence are brought against any person and documents or other things of which possession is taken in accordance with a warrant under this paragraph are required for the purposes of those proceedings, those documents or things may be retained until final judgment is entered in those proceedings.

(4) Any person who obstructs or interferes with a member of staff of the Commission or a member of An Garda Síochána in the course of exercising a power conferred on him or her by warrant under this paragraph or impedes the exercise by the member of staff or member of An Garda Síochána, as the case may be, shall be guilty of an offence.

Reports arising from inquiry

15. (1) The Commission may, and if requested by the Minister shall, make interim reports to the Minister during the course of its inquiry under section 35 .

(2) On the conclusion of the inquiry, the Commission shall—

(a) prepare a written report, based on the evidence received by it, setting out the facts it established in relation to the inquiry,

(b) make such recommendations as it thinks fit, and

(c) furnish the report to the Minister.

(3) The Commission may omit from its report any information that identifies or that could reasonably be expected to lead to the identification of a person who gave evidence to the Commission or any other person, if in its opinion—

(a) the context in which the person was identified has not been clearly established,

(b) disclosure of the information might prejudice any criminal proceedings that are pending or in progress,

(c) disclosure of the information would not be in the interests of the inquiry or any subsequent inquiry, or

(d) it would not be in the person’s interests to have his or her identity made public and the omission of the information would not be contrary to the interests of the inquiry or any subsequent inquiry.

(4) Before submitting a final or interim report to the Minister, the Commission shall send a draft of the report, or a relevant part of it, to any person who is identified in or identifiable from the draft report and advise the person by notice in writing that he or she may make written submissions within the time specified in the notice to the Commission if he or she believes that the Commission has not observed fair procedures in relation to the person.

(5) Where the Commission receives submissions from a person under subparagraph (4), the Commission shall have regard to such submissions and may—

(a) amend the report,

(b) apply to the Circuit Court for directions, or

(c) submit the report to the Minister without making any amendments.

(6) After hearing an application under subparagraph (5) the Court may make any order or give any directions it thinks fit, including a direction to the Commission to do one or more of the following:

(a) submit the draft report to the Minister without making any amendments;

(b) give a person specified by the Court an opportunity to give any evidence or make any submission that it considers necessary before the draft report is finalised;

(c) submit the draft report to the Minister after making such amendments as the Court may direct.

(7) Before submitting the report to the Minister, the Commission shall give written notice of any amendments made under this paragraph to any person who is identified in or identifiable from the report and who is affected by the amendments.

Confidentiality of draft reports

16. (1) A person who receives a draft of a report or part of a draft report from the Commission under paragraph 15 shall not disclose its contents or divulge in any way that the draft or part of the draft has been sent to that person, except—

(a) with the prior written consent of the Commission, or

(b) to the extent necessary for the purposes of an application to the Circuit Court.

(2) A person who contravenes subparagraph (1) shall be guilty of an offence.

Publication of final and interim reports

17. (1) Subject to subparagraph (2), the Commission shall cause the final report or an interim report to be published or otherwise made available and shall give notice to the public of the publication or availability.

(2) If the Commission considers that the publication of the final report or an interim report may prejudice any criminal proceedings that are pending or in progress, it shall apply to the Circuit Court for directions concerning the publication of the report.

(3) Before determining an application under subparagraph (2), the Court shall direct that notice be given to the following:

(a) the Attorney General;

(b) the Director of Public Prosecutions;

(c) any person who is a defendant in criminal proceedings relating to an act or omission that is mentioned in the report or that is related to any matter inquired into by the Commission and mentioned in the report.

(4) On an application under subparagraph (2), the Circuit Court may—

(a) receive submissions, and evidence tendered, by or on behalf of any person mentioned in subparagraph (3), and

(b) hear the application in private if the Court considers it appropriate to do so.

(5) If, after hearing the application, the Circuit Court considers that the publication of the report may prejudice any criminal proceedings, it may direct that the report or a specified part of it not be published—

(a) for a specified period, or

(b) until the Court otherwise directs.

Documents of Commission relating to inquiries absolutely privileged

18. The following are absolutely privileged:

(a) documents of the Commission (including its draft, interim and final reports), wherever published;

(b) documents of the members of the Commission relating to the Commission or its functions, wherever published;

(c) statements made in any form by members of the Commission in performing their functions under this Act and such statements wherever subsequently published.