THE HIGH COURT
		1996   No. 1959 SS 

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) ACTS 1781

BETWEEN
NESSAN QUINLIVAN
		APPLICANT 
AND
THE GOVERNOR OF PORTLAOISE
		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
	The Applicant in these proceedings is the subject of an enquiry under Article 40.4.2 of the Constitution in circumstances similar to those described in the judgment in the case of Anthony Duncan which I have just delivered.
	Although represented by different Counsel, the same Solicitor is on record for this application and the Motion in respect of which this judgment is being delivered, seeks precisely the same reliefs as those which were sought in the case of Anthony Duncan.
	In respect of a number of the reliefs sought, the arguments advanced by Mr McEntee on behalf of Anthony Duncan have been adopted by Mr Forde who appears on behalf of this Applicant.  In some cases, Mr McEntee's arguments have been adopted in full by Mr Forde without addition or omission.  In others he has advanced additional grounds to those advanced by Mr McEntee.  
	Insofar as the arguments advanced by Mr Forde are precisely the same as those advanced by Mr McEntee in Duncan's case, I do not propose to repeat in this judgment the conclusions which I have already come to in respect of such submissions.  This judgment will therefore deal only with the additional submissions which have been made by Mr Forde.  It follows therefore, that this judgment should be read in conjunction with that which I have already delivered in the case of Anthony Duncan.

CROSS-EXAMINATION ON THE AFFIDAVITS OF DISCOVERY
	The arguments of Mr McEntee in Duncan's case were adopted in full by Mr Forde in the present case.  No additional arguments or submissions were advanced and consequently the conclusions which I reached in Anthony Duncan's case apply in this case also.  

LEGAL PROFESSIONAL PRIVILEGE
	The arguments made by Mr McEntee on this topic were also adopted by Mr Forde.  However, he advanced a further and much more far-reaching submission.  He submitted that the legal professional privilege claimed by each of the Notice Parties in their respective Affidavits of Discovery was vitiated and ought to be disallowed because of what he described as a conspiracy having taken place between the Director of Public Prosecutions, the Minister for Justice and the Attorney General.  He argued that there existed what he called the fraud exception to legal professional privilege.  By this I take him to mean that the law recognises circumstances in which legal professional privilege will be refused in respect of documents which are used in furtherance of fraud.  Such a proposition is well established and has been so for many years (see for example R v. Cox and Railton (1884 14 QBD 153).  
	In Murphy v. Kirwan (1993) 3 IR 501 Finlay C.J. said 
	
	"The essence of the matter is that professional privilege cannot and must not be applied so as to be injurious to the interests of justice and to those in the administration of justice where persons have been guilty of conduct of moral turpitude or of dishonest conduct, even though it may not be fraud".
	
	In the present case Mr Forde contends that in the case of a conspiracy, legal professional privilege would not extend to documents used in furtherance of such a conspiracy.
	In the course of argument I enquired of Mr Forde as to whether the allegation of conspiracy which he was making against the Director of Public Prosecutions, the Minister and the Attorney General was of a conspiracy in the legal sense of that word namely, an agreement between these three persons to do an unlawful act or to do a lawful act by unlawful means.  He confirmed to me that that indeed was the allegation which he was levelling against them.  When I asked him to indicate the nature of the conspiracy he told me that it was a conspiracy on the part of these three office holders to deprive Mr Quinlivan of his right to liberty.  He furthermore contended that this conspiracy had its basis in the letter of the 1st November, 1996 from the Attorney General to the Minister for Justice in respect of which both legal professional and executive privilege has been claimed.
	 These are very serious allegations.   The gravamen of the charge made against them is that in the conduct of their offices the Director of Public Prosecutions, the Attorney General and the Minister for Justice have engaged in a wrongful conspiracy which would be both a tort and a crime.
	Needless to say, when Mr Forde put his case on this basis, I asked him to demonstrate the evidence upon which this assertion was based.  He did not refer me to a single allegation of such a conspiracy being made in any of the Affidavits filed on behalf of the Applicant.  Instead he directed my attention to selected passages from the Affidavits sworn and filed on behalf of the Notice Parties.  This material he said supported his contention of the unlawful conspiracy sufficient to defeat the claim of legal  professional privilege.  
	The first averment to which he drew my attention was that contained in paragraph 5 of the Affidavit of Barry Donoghue sworn on the 29th November 1996 on behalf of the Director of Public Prosecutions.  That paragraph reads as follows:-

	"I was informed by Mr Counihan [a Solicitor in the Chief State Solicitors Office] that his records indicated that the Applicant was one of a number of prisoners who had been charged before the Special Criminal Court after the 1st August, 1996 and that Judge Lynch was one of the Judges sitting on the Court on the relevant occasion.  Mr Counihan also informed me that there was a scheduled sitting of the Special Criminal Court at 11.00am the following morning.  The Director directed that if the Applicant was released at any time prior to 11.00am the following morning that he should be arrested by the Garda Siochana to be brought before the Special Criminal Court pursuant to Section 47 of the Offences Against the State Act, 1939 to be charged with the offence with which he had been previously charged.  I communicated this direction to Deputy Commissioner Noel Conroy as did the Director subsequently in my presence.  I believe that I communicated this information to the Deputy Commissioner between 6.30pm and 7.00pm".

	The second averment to which Mr Forde referred me was paragraph 10 of the Affidavit of Mr Tim Dalton, the Secretary of the Department of Justice sworn on the 29th November 1996.  That paragraph reads

	"I also decided that the Attorney's advice should be conveyed to the Deputy Garda Commissioner Mr Conroy and to the Principal Officer in the Prisons Division Mr Aylward.  The Deputy Commissioner indicated that, on the advice of the DPP, the prisoners, if released, would be re-arrested and brought before the Special Criminal Court the following day (7th November)".

	In order to make sense of that paragraph I should refer to the preceding paragraph of Mr Dalton's Affidavit where he avers that at 9.44pm he received advice from the Senior Legal Assistant in the Attorney General's Office that the Attorney General had advised that the prisoners in question should be released as soon as possible. 
	The third matter to which Mr Forde referred me was the material in paragraphs 3, 4 and 5 of the Affidavit of Deputy Commissioner, Noel Conroy sworn on behalf of the Commissioner of the Garda on 29th November 1996.  Those paragraphs read as follows:-

	"Following advice from the DPP and from Mr Barry Donoghue of that Office it was decided that if prisoners were released that they would be re-arrested in accordance with the appropriate power of arrest.  Mr Barry Donoghue gave me the following information in relation to the effected prisoners in custody:- Adam Busby, Donegal Five who are known to me as Hugh Wilkinson, Bernard O'Hagan, Patrick Gerard McCarthy, Paul Murray and Patrick Kavanagh, Michael Hegarty, Gabriel Cleary, Bryan McNally, John Conaty, Anthony Duncan, Michael O'Neill, Gerry Sheehy, Joseph Kavanagh and Nessan Quinlivan.
   
	Paragraph 4  As a result of obtaining this information I spoke to Chief Superintendent  James Murphy, Divisional Officer, Portlaoise and Superintendent Noel McCarthy, Portlaoise and made them aware of the problem as advised by the Director of Public Prosecutions.  I advised them to put in place at Portlaoise Garda Station a party of Gardai who should be in a position to re-arrest any of the aforementioned in accordance with law.  I also telephoned the Secretary of the Department of Justice and apprised him of the situation.  I had further conversations with the DPP and Mr Barry Donoghue concerning the situation.  

	Paragraph 5   The Director of Public Prosecutions directed that if the prisoners were released and re-arrested they were to be told that on his directions they would be brought before the first available sitting of the Special Criminal Court where each prisoner would be charged".

	The final matter to which I was referred by Mr Forde in support of his allegation of an unlawful conspiracy was contained in the Affidavit of Superintendent Noel McCarthy sworn on 28th November, 1996 at paragraphs 4 and 5.  There the Superintendent averred:-

	"I gave each of the members a file on the prisoner allocated to them which contained the material photocopied at the prison and I was present at a briefing when Chief Superintendent Murphy informed the selected members that they must each satisfy themselves that they had a power of arrest in respect of the prisoner allocated.  Even at this stage we were still unsure if the prisoners were to be released.  I am aware that some of the members contracted (sic) the members who originally investigated the cases to further familiarise themselves with the case.  At about 11.00pm it was confirmed that the releases would in fact be taking place. 
 
	Paragraph 5   At 11.40pm I went to Portlaoise Prison accompanied by Chief Superintendent Murphy and a full party of Gardai.  We went to the section immediately outside the gate of the prison and inside the perimeter fence.  This is the place where arrests had always been carried out previously since a serious incident involving the attempt to escape of extradition prisoner Patrick McVeigh.  I deployed the party of Gardai on each side of the main door, approximately 10 yards away from the door.  The members who were to carry out the arrests were deployed facing the main gate.  At the prison gate I handed in a list and asked that the order on the list be followed in terms of releases.  I did not ask for intervals between each prisoner.  Nor did I make the request for names to be called out though this is in fact standard prison practise as each officer must confirm each prisoner's identity to other prison officers at other gates".

	On the basis of these averments, Mr Forde alleges a conspiracy on the part of the Director of Public Prosecutions, the Minister and the Attorney General to deprive Mr Quinlivan of his right to liberty.
	I find no evidence of an unlawful conspiracy contained in these paragraphs to which I was referred by Mr Forde. 
	This was the only evidence to which I was referred as being supportive of the  allegation of  conspiracy.  In the course of their replies both Mr Ryan acting on behalf of the Attorney General and the Minister and Mr McGuinness acting on behalf of the Director protested at the making of this allegation of conspiracy.  They pointed out that no evidence to support it was contained in any of the grounding Affidavits sworn on behalf of the Applicant.  They furthermore pointed out that there was no evidence whatsoever of such a conspiracy contained in the material to which I was referred by Mr Forde.  The description given by Mr Ryan of Mr Forde's allegation as being one of extravagant speculation is, in my view, apposite.  
	Counsel for the Notice Parties further described the making of this allegation as being unfounded and irresponsible.  In the absence of any evidence to support it, this allegation of conspiracy should not have been made.			It follows that as there is no evidence of an unlawful conspiracy, the legal submissions concerning the vitiation of legal professional privilege find no basis in fact and this contention is rejected.

EXECUTIVE PRIVILEGE
	Mr Forde made a number of submissions on the question of executive privilege.  He asserted the non-existence of executive privilege or alternatively submitted that it was extremely narrow in concept.  It does not appear to me to be necessary to deal with these arguments since Mr Forde has not succeeded in disturbing the legal professional privilege claimed for the documents.  Accordingly, since the executive privilege is claimed in respect of the same documents any analysis of these arguments, even if they met with success, would be otiose as the documents would still not be discovered.

FURTHER AND BETTER DISCOVERY
	Insofar as this contention is concerned no additional arguments were made to the Court and consequently I propose to make the same order in this case as I have already made in Duncan's case.