Decision now clears the way for interviews by bank's inspectors

Employees and former employees of National Irish Bank (NIB) must answer questions put to them by the inspectors investigating the bank's affairs, the High Court ruled yesterday.

The decision has cleared the way for the interviewing process which the inspectors had hoped to begin late last May.

In a reserved judgment on an application by the court-appointed inspectors, Mr Tom Grace and Mr John Blayney SC, regarding conditions under which the employees might be interviewed, Mr Justice Shanley said that persons from whom information, documents or evidence are sought by the inspectors in the context of an investigation under the Companies Act 1990, are not entitled to refuse to answer questions put by the inspectors or to refuse to provide documents on the grounds that the answers or documents may tend to incriminate them.

The obligation to answer self-incriminatory questions, as set out in Section 10 of the 1990 Act, was not inconsistent with the right to trial in due course of law.

Whether or not there was a constitutional right not to have compelled testimony used against an accused was an issue he did not have to decide because it had not yet arisen.

He also found that the procedures proposed by the inspectors regarding the interviews are "consistent with the requirements of constitutional and natural justice". The inspectors propose to conduct the interviews in private. Interviewees may have a legal adviser present and will have a right to a transcript of their evidence. They will not be entitled to see questions in advance, to attend evidence of other witnesses, to cross-examine these or to indemnity against costs.

Mr Justice Shanley said it was a legitimate objective of the State, and entirely in the public interest, to lay bare "frauds and dishonest stratagems".

Where the only means of achieving this was to have an investigative procedure without a right to silence, as in the present case, one could properly state that the restrictions on that right imposed by Section 10 of the Companies Act "are no greater than is necessary to enable the State to fulfil its constitutional obligations of ensuring equality before the law and of protecting the property rights of every citizen".

The inspectors, who had planned to begin interviews on May 28th last, had applied to the High Court when they received correspondence from solicitors acting for more than 100 employees seeking, among other matters, confirmation that their clients had a right to refuse to answer questions on the grounds of self-incrimination.

Mr John O'Reilly, manager of the NIB branch at Patrick Street, Limerick, was nominated as the representative of the NIB employees and former employees for the purpose of the hearing before Mr Justice Shanley.

On his behalf, it was argued the NIB employees should be entitled to the privilege against self-incrimination. It was submitted the initial stage of the inspectors investigation was accusatorial and he was entitled to all material in the hands of the inspectors which reflect on his good name and reputation and he was also entitled to cross-examine his accusers before he himself was examined.

In his reserved judgment on the five-day hearing, which concluded on July 2nd last, Mr Justice Shanley rejected those arguments.

He said it was clear the inspectors proposed a two-stage procedure in their examination: the first, an information gathering exercise and the second, arising only when the first stage indicates it is possible that adverse conclusions may be drawn in relation to certain individuals dependent in whole or in part on the testimony of others. At the second stage, such individuals were entitled to attend, hear the evidence, cross-examine the witness and give evidence themselves.

The judge said Section 10 of the Companies Act 1990 obliges company directors and others to give all assistance to the inspectors and this clearly embraced answering questions put to them by the inspectors. Section 18 provided that such answers may be used against the person.

The only entitlement expressly given to a person to refuse to answer a question was whether the answer would disclose information which was the subject of legal professional privilege.

He was satisfied he could not construe Section 10 of the Act as preserving the privilege against self-incrimination, that a witness may not refuse to answer questions on the grounds the answers may tend to incriminate them and that the section has the effect of impliedly abrogating the right against self-incrimination.

On whether such an abrogation was constitutional, the judge said because the abrogation of the right to silence was no greater than necessary to allow the State discharge its constitutional duties, Section 10 was not unconstitutional.

The judge awarded costs of the hearing against the inspectors. He said the application had been brought by the inspectors, their view was upheld and ordinarily costs would follow.

But this was an unusual case. Mr O'Reilly was present in a representative capacity and NIB had also been made a notice party and it was appropriate both should have their costs against the inspectors. He made no order for costs in respect of the Minister for Employment and Enterprise and the Attorney General. He stressed his costs determination was made on the basis of a very limited issue, self-incrimination, and not reflecting on the matter as a whole which the inspectors were investigating.