THE HIGH COURT
		1996 No. 1958 S.S. 

IN THE MATTER OF AN APPLICATION FOR AN ENQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION AND
IN THE MATTER OF AN APPLICATION PURSUANT TO THE HABEAS CORPUS (IRELAND) ACT, 1781

BETWEEN

ANTHONY DUNCAN
		APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON
		RESPONDENT
AND BY ORDER

THE MINISTER FOR JUSTICE, IRELAND, THE ATTORNEY GENERAL, THE COMMISSIONER OF AN GARDA SIOCHANA AND THE DIRECTOR OF PUBLIC PROSECUTIONS
		NOTICE PARTIES

JUDGMENT of Mr. Justice Kelly delivered the 23rd day of January, 1997.

INTRODUCTION
	The Applicant is detained in custody on foot of a Committal Warrant issued by the Special Criminal Court on the 7th November, 1996.  He had previously been detained by a purported Order of the same Court dated the 8th October, 1996.  It is common case that the Order of the 8th October, 1996 was made by the Special Criminal Court in circumstances where one of the Judges who sat on it was ineligible so to do.  That Judge was His Honour Judge Dominic Lynch.  He had, at his own request, been removed from membership of the Court by a decision of the Government dated the 1st August, 1996.  That decision was not communicated to Judge Lynch who continued to sit as a member of the Special Criminal Court. He was not, however, competent to sit on the Court on the 8th October, 1996 and the purported Order made by that Court on that occasion was invalid.
	Notwithstanding the making of that invalid Order by the Special Criminal Court, the Applicant was detained in custody in purported compliance with it.
	On the night of the 6th November, 1996 or early in the morning of the 7th November, 1996 the Applicant was allegedly released from custody and rearrested.  What happened on that occasion is very much in issue in these proceedings.
	Later on the 7th November, 1996, he was brought before the Special Criminal Court and remanded.  It is on foot of that remand that he is in custody at present.
	On the 12th November, 1996 an application was made to this Court on behalf of the Applicant for an enquiry pursuant to Article 40 of the Constitution into the lawfulness of his detention at Portlaoise Prison.  That application was granted and the enquiry has been proceeding since then.  In the course of these proceedings, the Applicant served a Notice of Motion seeking discovery against the Respondent and a number of the Notice Parties to the application.
	On the 22nd November, 1996, I made an Order on foot of that motion.  That Order was made on consent and directed the Director of Public Prosecutions, the Minister for Justice, the Commissioner of An Garda Siochana and the Attorney General to make discovery by the 29th November, 1996.  They were directed to make discovery on oath of all documentation, data and records within their possession, procurement or control touching on or concerning

(a)	the circumstances of the removal of the Applicant from the custody of Portlaoise Prison on the night of the 6th November, 1996 and the early morning of the 7th November, 1996 into the custody of An Garda Siochana,

(b)  	the nature of the irregularity said by Counsel for the Attorney General, in addressing the Special Criminal Court on the 7th November, 1996, to exist in relation to the detention of the Applicant in custody on or before the 6th November, 1996, and

(c)  	the date and circumstances in which the irregularity referred to at (b) above and/or the facts constituting or giving rise to the same, came to the attention of the Respondent and/or the Notice Parties, including all notes, correspondence or memoranda constituting or reflecting the means by which said matters came to their attention.

	At this point, I should digress to point out that the Applicant is one of a number of applicants who make complaint concerning their detention on foot of remand orders made by the Special Criminal Court in circumstances similar to those already outlined in this judgment.
	Much confusion has been caused by virtue of the fact that some of the applicants, although represented by the same firm of solicitors, have instructed different Counsel who have sought and obtained different forms of Discovery Orders against the Respondents and the various Notice Parties.  Some of these Orders were more extensive than others.
	The Respondents and Notice Parties have filed Affidavits in common form in accordance with the most extensive Discovery Orders which have been obtained.  It follows that even those applicants who sought and obtained more restrictive Orders than others have benefited by being furnished with the fullest discovery which has been made.  In the instant case, the more extensive form of Order was obtained and has purportedly been complied with in full.

THE PRESENT APPLICATION
	In this application there is sought a series of Orders directed to three of the Notice Parties pertaining to the discovery which has been made by them.  These Notice Parties are the Minister for Justice, the Attorney General and the Director of Public Prosecutions.  The Orders sought are as follows:

(1)	An Order directing the Minister for Justice to produce before the Court the seven (sic) documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on her behalf on the 29th November, 1996.

(2)	An Order directing the Attorney General to produce before the Court the seventeen documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on his behalf on the 29th November, 1996.
(3)	An Order directing the Director of Public Prosecutions to produce before the Court the eleven documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on his behalf on the 29th November, 1996.

(4)	An Order directing an oral hearing of the claims of privilege made by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, in relation to the discovery made by the said Notice Parties.

(5)	An Order permitting the Applicant to inspect the documents, claimed by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, to be privileged in relation to the discovery made by the said Notice Parties.

(6)	An Order directing the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, to make further and better discovery in pursuance of the Order of Discovery made on the 22nd November, 1996.

	Apart from relief number (6) all the others relate to claims of privilege asserted by the Notice Parties in their respective Affidavits of Discovery.
	There was also served on the Notice Parties, a Notice of intention to cross-examine in respect of the three Affidavits of Discovery sworn on their behalf.  That Notice sought the production of Mr Tim Dalton, Secretary of the Department of Justice, Mr Richard Barrett, Legal Assistant in the Attorney General's office, and Mr Barry Donoghue, Legal Assistant in the Office of the Director of Public Prosecutions.  That Notice, insofar as it is relevant, says that the Applicant 

	"intends at the hearing of the interlocutory application for, inter alia, an inquiry into the claims made by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively,  to privilege in respect of documentation disclosed in their respective Affidavits of Discovery dated the 29th day of  November, 1996 and for an Order for further and better discovery by the said Notice Parties to cross-examine the several deponents named and described in the Schedule hereto on their Affidavits therein specified".

	A single Affidavit grounds this application.  It is that of Michael E. Hanahoe sworn on 11th December 1996.  Paragraph 6 thereof sets forth in a short but non-exclusive form the principal claims made by the Applicant which he alleges give rise to his current detention being unlawful.  He says that:

(a)	He was not in fact ever released from the custody of the State on the night of the 6th November, 1996 and the morning of the 7th November, 1996.

(b)	The Committal Warrant issued by Order of the Special Criminal Court sitting at Green Street in the City of Dublin on the 8th October, 1996 is ultra vires void and of no legal effect.

(c)	The Committal Warrant issued by Order of the Special Criminal Court sitting at Green Street in the City of Dublin on the 7th November, 1996 is ultra vires, void and of no legal effect.

(d)	The criminal charge contained in Bridewell Sheet No. 357/96, alleging that on the 12th April, 1996 the Applicant was a member of an unlawful organisation contrary to Section 21 of the Offences Against the State Act, 1939 as amended by Section 2 of the Criminal Law Act, 1976 presently (sic) pending before the Special Criminal Court, is ultra vires, void and of no legal effect.

(e)	The criminal charge contained in an unnumbered charge sheet at the complaint of Detective Sergeant Hugh O'Connor, which alleges an identical offence to that contained in Bridewell Sheet No. 357/96 presently (sic) pending before the Special Criminal Court, is ultra vires, void and of no legal effect.

(f)	The State, its servants or agents were aware of the material circumstances giving rise to the illegal detention of the Applicant both on the 6th and 7th days of November, 1996 and prior to those dates.

	The Affidavit goes on at paragraph 12 thereof to make an allegation that both the Minister, the Attorney General and the Director of Public Prosecutions "have taken a policy decision to disclose only those documents that are in effect concerned with the facts of the events which occurred on the 6th  and 7th days of November, 1996".
	It further asserts the belief on the part of the Applicant that there are "presently (sic) in existence further categories of documentation which are both admissible and material" to the enquiry. 
	The deponent then goes on to set forth in the subsequent paragraphs examples of what he says are documents which ought to have been discovered but were not.  I will return to consider these in due course.
THE AFFIDAVITS OF DISCOVERY
	The Affidavit of Barry Donoghue, sworn on behalf of the Director of Public Prosecutions, maintains a claim to legal professional privilege in respect of the documents set forth in the second part of the First Schedule to his Affidavit.  That part of the First Schedule contains eleven different items.  In respect of the items Nos. 2, 3, 4, 5, 9, 10 and 11, the deponent avers that those documents came into being for the purpose of giving or receiving legal advice or are notes taken by the parties described in the Schedule to the Affidavit as to the advice given by Counsel on the issues in suit.
	Insofar as item No. 1 in the second part of the First Schedule to Mr Donoghue's Affidavit is concerned, he alleges that the privilege to be attached to that is not that of the Director of Public Prosecutions.  Nonetheless, he maintains the claim to privilege because, he says, it may be a document in respect of which another party to the proceedings may claim privilege because the document may be one which was drawn up for the purpose of preparation of an Affidavit in the proceedings.  In fact the Director was correct in his belief that other parties might claim privilege in this regard; they have done so.  Similar considerations arise in relation to the material set forth at Nos. 6 and 7 in the second part of the First Schedule.  Other Notice Parties to these proceedings have claimed privilege in respect of them.
	The Affidavit of Richard Barrett, sworn on behalf of the Attorney General, makes two separate claims to privilege.  The first is a claim to legal professional privilege and the second to executive privilege.  Legal professional privilege is claimed in respect of twenty one items which are set forth at numbers 11 through 31 of Section A of part 2 of the First Schedule to the Affidavit.  Executive privilege is claimed in respect of seventeen items which are set forth at Section B of part 2 of the First Schedule of the Affidavit of Discovery.  All of the documents which are the subject of the claim of executive privilege also have the claim to legal professional privilege asserted in respect of them.  
	The original Affidavit of Discovery sworn by Mr Barrett on the 29th November, 1996 did not set out the basis upon which the claim to legal professional privilege was asserted.  However, in a supplemental Affidavit sworn on the 16th December, 1996 at paragraph (7) he said 
	
	"the claim of legal professional privilege made in respect of the documents set forth at Section (a) of part 2 of the Schedule to my Affidavit dated 29th November, 1996 is based on the fact that the documents set out therein are documents directed to or emanating from a legal advisor written for the purpose of rendering or obtaining legal advice or documents brought into being in the course of preparing and/or assembling that legal advice."
	
	The claim to executive privilege is set forth in respect of documents numbered 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25 and 26 because it is claimed they are confidential communications between on the one hand, a Minister of Government or a Department of Government and on the other, the Attorney General and his officials, or between officials of the Attorney General in relation to affairs of State.  The claim in respect of the documents numbered 30 and 31 is because they are alleged to be confidential communications between the Chief State Solicitor and the Department of the Taoiseach, for the purpose of supplying information for Dail debates and questions.
	The Affidavit of Tim Dalton, sworn on behalf of the Minister for Justice, maintains a claim to both legal professional privilege and executive privilege in respect of certain documents.  The claim to legal professional privilege is asserted in respect of six documents which are numbered 53 through to 58 in Section A of the second part of the First Schedule to the Affidavit.  In the original Affidavit of Discovery the basis upon which that claim was made was not set forth, but in a supplemental Affidavit sworn on the 16th December, 1996 Mr Dalton says this:-
	
	"the claim of legal professional privilege in relation to the documents set forth in Section A of part 2 of the First Schedule is based on the fact that the documents set out therein are documents directed to or emanating from a legal advisor written for the purpose of rendering or obtaining legal advice.  Two of the documents, numbered 53, and 58, are letters from the Attorney General to the Minister for Justice or a senior Official in the Department of Justice written for the purpose of rendering legal advice.  One document numbered 57, is a fax and letter from a senior Official in the Department of Justice written for the purpose of obtaining legal advice from the Attorney General and two documents, numbered 55 and 56, are documents from the Chief State Solicitor's Office to a senior Official in the Department of Justice written for the purpose of rendering legal advice".
	
	Insofar as a claim to executive privilege is asserted, that is maintained in respect of a single letter dated the 1st November, 1996 from the Attorney General to the Minister for Justice.  Executive privilege is claimed in respect of that on the ground that it is a communication in the area that in the public interest requires confidentiality for the proper functioning of the Public Service.  Legal professional privilege is also asserted in respect of this letter since it is the letter set forth at number 53 in Section A of Part 2 of the First Schedule to the Affidavit, and such privilege is claimed in respect of it because it is averred the letter was written for the purpose of rendering legal advice. 

The Application to Cross-Examine
	The Applicant seeks to cross-examine the deponents on their respective Affidavits of Discovery.  He seeks to do so in respect of two matters.  The first is to cross-examine them concerning the privilege which is claimed by them, and the second is in respect of the application for further and better discovery which is sought.  
	This application to cross-examine was opposed by Counsel on behalf of all of the Notice Parties.  
	The proposition put by Mr McEntee on behalf of the Applicant is that he is entitled to test, by way of cross-examination, what he describes as the bald claim of privilege, which is made in the various Affidavits of Discovery.  Furthermore, he says that he should be entitled to cross-examine so as to establish whether or not there are documents in the power, possession or procurement of the respective Notice Parties which ought to have been discovered but were not.  
	Mr McEntee was unable to produce any Irish authority in his favour which decided that cross-examination on an Affidavit of Discovery was permissible.  The nearest he came to so doing was to rely upon the judgment of Johnson J. in Murphy (a minor) v. J. Donohue Limited & Ors  [1995] 2 ILRM 509.  That was an application to strike out a defence for failure to make full discovery in accordance with Orders made in that behalf.  In that case cross-examination did take place but on a consensual basis.  Such being so, the case is of little assistance in deciding the question of principle of  whether or not cross-examination is ever permissible on an Affidavit of Discovery.  However, Mr McEntee says that the mere fact that cross-examination took place, even on a consensual basis, demonstrates that the procedure is at least available.  He submits that having regard to the fundamental importance of the habeas corpus procedure prescribed under Article 40.4.2 of the Constitution, each and every possible procedure ought to be available to the Court in ensuring the efficacy of the Court's powers under that Article.  He contends that once he demonstrates that cross-examination is desirable upon the Affidavit, then that is sufficient and the Court ought to permit him to proceed in that fashion. 
	Mr McEntee cited three English cases which he said were supportive of his view that such cross-examination is permissible in principle.
	The first of these cases is Berkley Administration Inc. & ors v McClelland & ors (1990 FSR 381).  That was an action for breach of confidence.  The Plaintiff sought the specific discovery of a number of categories of documents including the whole of documents which had hitherto been discovered only in an edited or partly blanked out form.  They also sought discovery of certain documents in the possession of personal Defendants relating to pre-incorporation transactions of corporate Defendants of which those personal Defendants had been directors.  An Affidavit had been sworn by a Solicitor acting for the Defendants as to the adequacy of the discovery already given.  The Judge made Orders for Discovery of certain categories of documents but refused others.  The Defendants appealed.  In the course of his judgment at page 383, Mustill L.J. (as he then was) said, in respect of item 5
	
	"this calls for disclosure of the whole of documents only part of which have so far been disclosed in an edited form.  It has been stated on oath, by Mr Webb, on behalf of the defendants, that the covered up parts are not germane to any issue in suit.  Plainly the atmosphere in the case is such that the Plaintiffs have grave scepticism about anything said on behalf of the defendants, but it is not a purpose of discovery to give the opposing party the opportunity to check up on whether the discovery has been properly carried out.  If they do not believe the deponent they should call for him to appear and be cross-examined on his oath.  Alternatively, if they wish to do so, they may seek the opportunity at the trial to explore the matter further.  But for my part I think it quite plain that in the exercise of our discretion we should not order these documents to be disclosed.  This seems to be a matter which is much better left for the trial Judge to deal with if and when it is pursued".  

	On the basis of that very brief assertion by Mustill L. J. as to the ability to cross-examine a deponent, Mr McEntee asserts the entitlement so to do.  However, a consideration of the case in detail demonstrates that the Court of Appeal did not appear either to have cited to it, or to refer in its judgment, to any of the case law on the topic, the overwhelming bulk of which is to the effect that cross-examination upon an Affidavit of Discovery is not permissible in the Courts of England and Wales.  As an authority for the proposition advanced by Mr McEntee it is therefore, in my view, of comparatively little help.  
	The second English decision relied upon is that of Re Grosvenor Hotel London which is reported in the Court of Appeal at (1964) 1 AER 92.  Those proceedings involved a claim for a new tenancy of business premises against the British Railways Board.  That Board objected in its Affidavit of Documents to the production of certain letters passing between the respondents and the Ministry of Transport and the Treasury Solicitor.  That objection was taken after communication with the Treasury Solicitor.  The Applicants applied by summons, to which the Board and the Minister were Respondents, for an Order for cross-examination of the Minister on his Affidavit.  In the High Court the Judge found that the objection was not properly taken in the Affidavit of the Minister but declined to make an Order for his cross-examination.  Instead he made an Order that would enable the Minister to file a further Affidavit to support the claim that the documents belonged to a class which on the grounds of public interest ought to be withheld from production.  The Court of Appeal dismissed the appeal on the basis that it was a misconceived one.  This was because the Applicants had had a finding in their favour that no proper claim for privilege had been made.  Whether the Minister should be given another opportunity to remedy that defect was at the Judge's discretion and no grounds for interfering with his exercise of that decision had been established.  Mr McEntee relies on the obiter dictum of Harman L.J. at page 94 where he said:- 
	"Now the Applicants were not content with that affidavit and on June 12th they took out a summons before the master asking for leave to summon the Minister for cross-examination.  That is a very unusual thing in the course of discovery in an action and, as between the parties, I do not think that it can be done, because an affidavit of documents is not an affidavit raising issues in the suit.  It is an affidavit about what documents A or B has in his possession or power or has had, and there are other means of getting documents.  However that may be, the Judge said when the summons came before him that he did not doubt that he had jurisdiction to order cross-examination if he thought that it was a proper case for it, and I do not think that I would quarrel with that view today".  
	
	The final case relied upon by Mr McEntee was the decision of the Court of Appeal in Lonrho plc v Fayed and ors  (No 3) (The Times Law Reports June 24 1993).  In that case the Court of Appeal held that where at the interlocutory stage of an action, an Affidavit was made by a party pursuant to an Order for specific discovery of documents, the other party was not entitled to contravene what was sworn there by a further contentious Affidavit or by obtaining an Order to cross-examine that party, since the latter's oath in answer was conclusive.  
	In that case an application was made to cross-examine in respect of documents which, it was alleged, ought to have been discovered but were not.  Counsel for the Defendants submitted to the Court of Appeal that the law was clearly established that the Oath or affirmation of deponents as to discovery of documents that they had no further documents was conclusive and could not be questioned at an interlocutory stage.  The reason for the rule, he said, was to avoid prolonged interlocutory hearings and because grave injustice could result if crucial issues of the trial were to be determined on wholly incomplete and inadequate evidence.  He further submitted that if there was power to cross-examine on such Affidavits, it should be confined to cases where the existence or fate of the documents raised discrete questions not involving the Court in reaching preliminary conclusions on the issues in the action.  Counsel for the Plaintiff submitted that it was not, and never had been, the law that such further Affidavit of Documents was conclusive.  If that were so, he said, the Court would be powerless to enforce its Orders.  
	In the course of the leading judgment Stuart-Smith L.J., referred to the rule that prohibited cross-examination on Affidavits of Documents which was affirmed by the Court of Appeal in Jones v Montevideo Gas Company (1880) 5 QBD 556.  He went on to hold that there had always been a procedure by which a party could seek a further and better Affidavit of Documents but the criteria justifying the making of such an Order had altered over the years.  However, he held that the oath of the deponent on the further Affidavit was conclusive.  The report in its relevant part reads as follows:  
	
	"His Lordship concluded that on whatever ground the Order for a further Affidavit was made, whether because of some admission by the deponent or the belief of the opposite party that other documents existed, the deponents oath was conclusive; it could not be contravened by a further contentious affidavit and could not be the subject of cross-examination".  

	The report goes:

	"The reasons for the rule were not far  to seek.  In the great majority of cases where it was alleged that one party or the other had suppressed documents, that issue would be crucially relevant to the issues in the trial and could only be properly determined after the Judge at trial had heard all the evidence.  To try the issue at an interlocutory stage could involve injustice to both sides".
	
	Later in the report the following appears: 

	"If, contrary to his Lordship's view, there was power to order cross-examination on an affidavit of documents, the exercise of that power should be reserved for those cases where the existence or non-existence of the document raised a discrete issue which did not impinge to any serious extent on the issues in the action".

	This authority appears to me to be against Mr McEntee since it is the unanimous view of the Court of Appeal in England that cross-examination on an Affidavit of Discovery is impermissible.
	The decision of the Court of Appeal in Jones v. Montevideo Gas Company seems to have been relied upon by Stuart-Smith L.J. in the Lonrho case as being authority for the proposition that cross-examination on Affidavits of Discovery was prohibited.  That clearly was the import of the decision of the Court of Appeal in the Jones case.  However, a consideration of the judgments in it demonstrate that they were concerned with the interpretation to be given to the then relevant provision of the Rules of the Supreme Court, 1875.  Even though, in the course of his judgment, Brett L.J., says that an Affidavit of Documents must be accepted as conclusive, he nonetheless speaks of the possibility of administering interrogatories with a view to ascertaining the adequacy of the disclosure which has been made in an Affidavit of Discovery.  The view of the Court of Appeal appears to have been based upon what was formerly the practice in the Court of Chancery which apparently prohibited the contradiction of an Affidavit of Discovery which had to be taken as sufficient unless, from the documents referred to or from an admission in the pleadings of the party from whom the discovery was sought or from the Affidavit itself, it could be gathered that some documents were withheld.  The object of that practice per Cotton L.J. was to prevent a conflict of Affidavits as to whether the Affidavit of Documents was sufficient.  The Court of Appeal decided that a similar practice ought to be followed in the Queen's Bench Division.
	A consideration of these English decisions suggests that there is at least some  doubt as to the existence of a rule which absolutely prohibits cross-examination on an Affidavit of Discovery as far as the Courts of England and Wales are concerned.  This is particularly so having regard to the observations of Harmon L.J. at the conclusion of the passage from his decision in Re Grosvenor Hotel London which I have just cited.  If there is such a rule in English law, it appears to be based upon a contention that the Courts there are obliged to accept an Affidavit of Discovery as conclusive as to its contents unless, from the documents referred to or from an admission in the pleadings of the party from whom the discovery was sought or from the Affidavit itself, it could be gathered that some documents were withheld.
	I do not accept that in Irish law an Affidavit of Discovery must be considered as conclusive and can never be the subject of cross examination.
	Just as a certificate concerning the concentration of alcohol in a specimen of blood or a specimen of urine was unacceptable to the Courts as "conclusive evidence" of certain facts, so an Affidavit of Discovery cannot be regarded ipso facto as conclusive (vide Maher v. Attorney General (1973) I.R. 140).  It appears to me that the administration of justice, which is vested by the Constitution in the Courts, requires that the Courts have the ability to adjudicate fully upon the adequacy and accuracy of an Affidavit of Discovery.  In exceptional cases this may involve the cross-examination of the deponent of such an Affidavit.  To hold otherwise would mean that the Court would be deprived from investigating the accuracy or adequacy of an Affidavit of Discovery and would have to accept at face value what is averred therein.  It appears to me that the Court must always retain the power and make available the necessary machinery to ensure that it is not so limited in administering justice.
	Such observations apply a fortiori where the Court is engaged upon an inquiry under Article 40 of the Constitution.  The Court must be astute to ensure that the remedy provided for in Article 40 may be obtained efficaciously.  In this regard the judgment of the Court (Geoghegan, Laffoy, Kelly J.J.,) in Gallagher v. Director of the Central Mental Hospital (unreported 9th July, 1996) is of relevance.  There the Court said:- 

	"There can be many instances of Article 40 inquiries which involve looking behind the document or documents purporting to authorise the detention and therefore, for all practical purposes, embrace an element of quasi judicial review of a Court proceeding.  It may be open to argument that a party to that proceeding, though not the actual detainer, should be given a hearing in the interests of fair procedures.  Furthermore, Article 40.4(2) cannot really be said to be totally comprehensive as to procedures.  As has been rightly pointed out by Mr. Hardiman, the Article is silent on the swearing and filing of affidavits, Orders of Discovery, Bail Orders pending the determination of the inquiry etc, yet all these procedures are commonly availed of in such inquiries.  Although Order 84, Rule 1(2) of the Rules of the Superior Courts expressly excludes from the definition of "Order of Habeas Corpus" an order made pursuant to Article 40, Section 4, the Constitution itself, in my view, envisages the widest possible powers to be conferred on the Judge or Court conducting the inquiry, which power could not be delimited or cut down by the rules-making Committee".

	It appears to me that there are circumstances in which it may be permissible to cross-examine on an Affidavit of Discovery.  However, I am satisfied that such circumstances are extremely rare.  This is so because of the variety of other remedies which are available with a view to testing matter contained in an Affidavit of Discovery.  These other remedies include Orders for further and better discovery, the delivery of interrogatories, and the inspection by the Court itself of documents referred to in an Affidavit of Discovery.  Furthermore, it appears to me to be wholly undesirable that the Court should, save in the most exceptional cases, be called upon to deal with questions such as the existence or non-existence of a document in circumstances where such a question might impinge to a serious extent on the issues in the action.  Clearly at the stage when an issue of discovery of this type is being argued, the Court cannot be fully au fait with all the issues in the proceedings.  I do not in this judgment wish to specify the rare circumstances in which cross-examination on an Affidavit of Discovery may be permitted.  But it does appear to me that when permitted at all, it should only arise in circumstances where it is both necessary and where other remedies, such as those already mentioned, prove inadequate.
	In the circumstances of this case for reasons which I will give in a few moments, I am satisfied that cross-examination on the Affidavits which have been made here is unnecessary and inappropriate.

LEGAL PROFESSIONAL PRIVILEGE 
	Each of the Affidavits makes a claim to legal professional privilege in respect of a number of documents referred to therein.  I have set forth the basis upon which this privilege is claimed.  Prima facie, on the basis of what is contained in the respective Affidavits, the claim to legal professional privilege appears to be a good one.  The only Affidavit evidence to the contrary appears to relate to a letter from the Attorney General to the Minister for Justice dated 1st November, 1996, where at paragraph 24 of his Affidavit, Mr. Hanahoe says:-

	"I say and believe that the dual claim of both executive privilege and legal professional privilege in relation to the letter from the Attorney General to the Minister for Justice and dated 1st November, 1996 is without foundation.  I further say that in the documentation already discovered by the State there are repeated references to the fact, the content and the significance of this letter in relation to the events the subject matter of this inquiry".

	Mr. McEntee does not contest the existence of legal professional privilege or the form in which it is claimed in respect of these documents.  However, he says that the documents, in addition to containing legal advice, may also contain factual matter and that  legal professional privilege would not extend to such matter.  He invites me to

(a)	permit him to cross-examine, or
(b)	to direct the production of these documents with a view to the Court
	reading them and extracting from them the factual content in respect 
	of which he says a claim to legal professional privilege would not apply.

I will consider each in turn.
	I cannot see that any advantage can be obtained by permitting a cross-examination on the basis of Mr. McEntee's contention.  If what he wishes is to have the factual content extracted from the documents and disclosed to him, I cannot see how the cross-examination of the deponent can assist in that endeavour.  It appears to me that cross-examination is neither necessary nor appropriate in the present case.
	If the contention made by Mr. McEntee for a severance to be made of documents in respect of which legal professional privilege is claimed is a good one, then of course such documents must be examined by the Court with a view to carrying out the exercise sought.
	It is not without significance that Mr. McEntee was unable to cite any authority from any country in the world supporting his argument that the Court could or should embark upon the exercise which he suggests.  It is unprecedented and, in my view, such is the case for very sound reasons.  
	In R. v. Derby Magistrates Court ex-parte B (1995) 4 All E.R. 526, Lord Taylor of Gosforth L.C.J., in delivering the leading speech in the House of Lords set forth in a succinct form the history of legal professional privilege.  He concluded (at p. 540) as follows:-

	"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth.  The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.  Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case.  It is a fundamental condition on which the administration of justice as a whole rests".

	It appears to me that the proposition advanced by Mr. McEntee to the effect that the Court ought in this case to direct the production of the documents in respect of  which legal professional privilege is claimed and then, in effect, edit them so as to make factual matter in them disclosable to him, would be to dilute in very considerable measure the whole notion and effect of legal professional privilege.  It would, in my view, be an unwarranted and dangerous course to embark upon and would amount to a serious interference with what the then Lord Chief Justice of England described as "a fundamental condition on which the administration of justice as a whole rests".
	Quite apart from the objection in principle, Mr. McEntee's formulation has many practical difficulties attendant upon it.  If he is correct in his submission, any case in which legal professional privilege is claimed may, on the simple request of the opponent, result in the Court being called upon to go through the entire of the documents with a view to ascertaining, not the validity of the claim to legal professional privilege, but rather to engage in the work of editing the documents with a view to extracting from them factual material to be disclosed to the other side.  This exercise would have to be conducted at a time in advance of the trial when no judge can be fully apprised of the entire factual matrix against which the action is brought.  The conduct of such an exercise would, in my view, be much more likely to work against the administration of justice than in its favour.
	Accordingly, I refuse both the application to cross-examine and the application for the production of the documents in respect of which legal professional privilege is claimed.
	There may well be a case (although I hope a rare one) where cogent evidence might be adduced to suggest that a claim to legal professional privilege is being wrongfully asserted.  In such a case I do not exclude an ability on the part of the Court to direct production of the documents in question.  Such an exercise would be with a view to ascertaining whether or not the documents were truly privileged.  That is not the proposition which was advanced in this case.

EXECUTIVE PRIVILEGE
	The claim to executive privilege is made only by the Attorney General and the Minister for Justice.  The claims are made on the basis which I have already set forth in this judgment.  I, of course, accept the law on this topic as laid down by the Supreme Court in Murphy v. Dublin Corporation (1972) I.R. 215 and more recently in Ambiorix Limited v. The Minister for the Environment (1992) I.L.R.M. 209.
	The principles applicable to such a claim are set forth in the judgment of Finlay C.J. at page 212.  He summarises them as follows:-

	"1.   Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution.
	2.   Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.
	3.   Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.
	4.   The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the government.
	5.   It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.

	  These principles lead to certain practical conclusions which are applicable to a claim of privilege by the executive of the nature which arises in this case, and they are as follows:
	
	(a)   The executive cannot prevent the judicial power from examining documents which are relevant to an issue in a civil trial for the purpose of deciding whether they must be produced.

	(b)   There is no obligation on the judicial power to examine any particular document before deciding that it is exempt from production, and it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis of a description of its nature and contents which it (the judicial power) accepts.

	(c)   There cannot, accordingly, be a generally applicable class or category of documents exempted from production by reason of the rank in the public service of the person creating them, or of the position of the individual or body intended to use them".

	Given this statement of the law, it is clear that in an appropriate case the Court can and frequently does direct the production of the documents in respect of which the claim to executive privilege is made for the purposes of those documents being inspected by the Court.  Upon inspection, the Court will decide whether it is exempt from production or not.
	In the present case there is no attempt made to assert the executive privilege in respect of a class or category of documents.  Rather individual documents are specified and the claim to privilege is asserted in respect of them.
	Although little is produced by way of evidence to controvert this assertion, I would be prepared, were this an appropriate case so to do, to direct the production of these documents for the purposes of their being examined by the Court.  However, I have concluded that it is inappropriate in the present case for the following simple reason.
	Each of the documents in respect of which the claim to executive privilege is made is also the subject matter of a claim to legal professional privilege.  I have already held that that claim is made in a proper form and Mr. McEntee has not denied the existence of such privilege in respect of the documents which are set forth in the various Affidavits.  I have rejected his contention that the Court should trawl through these documents with a view to separating the facts from the legal advice which they contain.  
	If I were to examine the documents in the present case and to hold that executive privilege did not attach to them, they would still not be disclosed to the Applicant by reason of the existence of a valid claim to legal professional privilege.  Accordingly, the exercise in the present case would be otiose.  I therefore refuse to make an Order for the production of these documents for their inspection by the Court.
	Given that the existence of this remedy, i.e. production and inspection by the Court, which might have been available but for the claim to legal professional privilege, I likewise dismiss the application which seeks to cross-examine in relation to this claim of executive privilege.  It would be neither necessary nor appropriate that such an exercise should be engaged in given the powers (in particular the power of inspection) available to the Court.

FURTHER AND BETTER DISCOVERY
	The final element of the application which I must consider is the claim for further and better discovery.
	Again, the Applicant seeks to cross-examine in relation to this aspect of the matter.  Again, I reject his application in this regard since I do not regard it as either necessary or appropriate that such cross-examination should take place.  If the Court is satisfied as to the inadequacy of discovery already made, it may make an Order requiring further and better discovery to be made and if the Applicant is still dissatisfied at that stage, there are other  remedies available to him apart from cross-examination on the Affidavit of Discovery.  In any event, on the facts I hold that such cross-examination is unnecessary.
	To the grounding Affidavit of Mr. Hanahoe there has been filed a replying Affidavit by Mr. Tim Dalton, on behalf of the Minister for Justice and by Mr. Richard Barrett, on behalf of the Attorney General.  Each of those Affidavits deals in detail with the complaints which are set forth in Mr. Hanahoe's Affidavit and, in my view, constitute a satisfactory answer to the various complaints which are made.  It does not appear to me to be necessary to set out in detail in this judgment the various factual matters which have been canvassed in those Affidavits in any detail.
	Having regard to the very full Affidavit of Discovery made in particular by the Minister for Justice and to the explanations which are set forth in the replying Affidavits to which I have referred, I am not satisfied that the Applicants have demonstrated the likelihood of the existence of further or other documents pertinent to the issues which have been identified to date in the proceedings.  However, in common with the case of Michael Hegarty, I propose to make an Order in this case for the exchange of pleadings as between the parties.  This will involve the Applicant delivering a Statement of Claim and the Respondent and Notice Parties delivering defences to that Statement of Claim.  The delivery of such pleadings should ensure the identification of the issues in the case in a rather more precise fashion than that set out at paragraph 6 of Mr. Hanahoe's grounding Affidavit.  I will direct that at the conclusion of the delivery of pleadings each of the Notice Parties should serve a further Affidavit of Discovery in respect of any documents which appear at that stage to be relevant to the issues which fall to be tried in the proceedings.  That will ensure that at the time when pleadings are closed, the question of discovery will be looked at anew in the light of the allegations which will be advanced in Court on the substantive hearing.

CONCLUSION
	I therefore propose to make the following Orders:

(a)	The application seeking to cross-examine on the Affidavits of Discovery will be dismissed.
(b)	The application seeking to have the Court examine the documents in respect of which legal professional privilege is claimed with a view to editing out of those documents factual material which should then be disclosed in that edited form to the Applicant is dismissed.
(c)	The application seeking to disallow the claim to executive privilege is dismissed since each document in respect of which such privilege is claimed is already the subject of a claim to legal professional privilege which is not controverted by the Applicant.  Consequently such an exercise would be otiose.
(d)	The claim for an Order for further and better discovery is dismissed.  However, I will direct that further Affidavits of Discovery be sworn at the conclusion of the delivery of pleadings.  This will ensure the making of full discovery at that stage of the proceedings when all of the issues as between the parties should be fully identified.