Is Vincent Browne’s pessimism on tribunal costs justified?

By Kieran Fitzpatrick

Vincent Browne says in his article on the Mahon Tribunal that a witness has a constitutional right to have legal representation at a tribunal of enquiry. The tribunal cannot convict anyone of a criminal offence, so where does any automatic (or at least any constitutional) right to legal representation come from?

In referencing a 1971 case, I assume Vincent is refering to the case of Ringeisen v Austria 1971 which was adjucated by the European Court of Human Rights(ECtHR) and that Vincent is using the term constitutional in a broad sence. There the ECtHR found that Article 6 ECHR (European Charter of Human Rights) applies where “proceedings the result of which is decisive for private rights and obligations.” However, any judgement in this case was not found to be applicable by the Supreme Court (June 2011) in the UK in relation to the refusal to allow legal representation to a teacher involved in a disiplinary hearing.

Article 6 ECHR reads as follows insofar as it relates to rights of legal representation:

“1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…….Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; The decision of the UK Supreme Court seems to hinge on whether a decision of a tribunal might substantially influence a decision of another authority in “proceedings the result of which is decisive for private rights and obligations”.

The Supreme Court held this not to be so in that case, with one judge dissenting. It should also be noted that in the UK case, the issue was whether a person had an entitlement to legal representation at a tribunal, not a right of having such representation paid for by the tribunal. I therefore contend that the suggestion that any witness to a Tribunal in Ireland has an automatic right to have such representation paid for by the state is highly questionable, in a situation where such a tribunal refrains from making any judgement of criminal wrongdoing.

In the absence of any judgement by the tribunals of criminal wrongdoing, I suggest that the decision to pay a witness’s own costs is a matter of “contract law” reather than constitutional law. The contract I suggest exists is as follows: “If you, as a witness before the tribunal, engage with the tribunal in a co-operative manner, then any legal costs incurred by you, if you choose to have legal representation at the tribunal, will be paid by the tribunal. “

The second aspect of the costs issue, the right of the tribunal to recover other costs of the tribunal that result from the failure of a witness to co-operate with the tribunal, can be covered under the law relating to “damages in tort”, which is an effective civil action. Any witness that feels unjustifiably treated by the Tribunal in either regard has the option of appealing such a decision to the High Court, where their lawful right to fair procedure can be re-assessed by the High Court. In such a Hight Court case, any constitutional infringments can be reviewed. Secondly, Vincent suggests that everyone accepts that the Tribunal has no power to inpose penalties, and seems to imply that the JMSE v Mahon Tribunal judgement confirms this point.

I would question such a conclusion. I would argue that to withold costs from an uncooperative witness should not be construed as a penalty, but rather as the withdrawal of a privilage granted to cooperative witnesses. Surely, the lesson of this case is that if a Tribunal wishes to make an order of costs against a witness to a Tribunal, it should simply restrict the grounds for making such an order to one of “failure to cooperate”, as opposed to “deliberate obstruction”. Without contradicting any decision of any Judge in the case of JSME V Mahon tribunal, I would like to respectfully suggest that (in any challenge to the constitutionality of the Tribunal’s authority) Article 37 of the Irish Constitution should be brought to the fore. It runs: "Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law."

So to answer Vincent’s "Isn’t it obvious?" question I respectfully suggest: it is not.