O'Neill v Revenue Commissioners (Approved)

1. The applicant also refers to G v DPP [2023] IEHC 134, where it was sought to have criminal proceedings which were listed before the District Court anonymised and the District Court refused the application. In granting leave, this court (Simons J.) observed at paragraph 28 of the judgment that he had previously directed that reporting restrictions apply to the judicial review proceedings pro tempore as it “would render the proceedings nugatory” if such an order were not imposed because the identity of the parties, which was the very thing that the applicant sought to protect, would have been disclosed.

1. As mentioned earlier, reference is also made to the decision of Clarke J. (as he then was) in Doe & Doe v The Revenue Commissioners.

1. In summary, the plaintiffs had reached a settlement with the Revenue Commissioners in relation to a scheme for disclosure of undeclared tax liabilities and had sought, via a preliminary application, the court’s approval to issue proceedings under assumed names. Clarke J. described what the issues were in the case at paragraphs 4.11 to 4.13 of his judgment, as follows:

“4.11 Under this heading it was argued on behalf of the plaintiffs that an inability to maintain these proceedings with anonymity would amount, in substance, to a barrier to proper access to the courts. The plaintiffs’ argument was to the effect that a requirement that they be named as plaintiffs would, in practical terms, deprive them of the opportunity to bring proceedings designed to protect their anonymity. There is, of course, a sense in which that assertion is factually correct. A finding by the court that the construction which the plaintiffs seek to place on the relevant provisions of the Taxes Acts was correct, would mean that the plaintiffs could not properly be included in the periodic list of tax defaulters published by the Revenue. However, the fact that the plaintiffs were tax defaulters who had entered into a settlement of the type which I have described earlier in this judgment would, of course, become public knowledge through the route of the court proceedings which, if not permitted to be brought anonymously would, of course, identify the plaintiffs as the tax defaulters concerned.

4.12 Thus, it was said, that where the purpose of the proceedings is to prevent the publication of a particular piece of information, then those proceedings are rendered largely useless if the party concerned has to be named in order to bring the proceedings in the first place.

4.13 However, similar considerations apply to a greater or lesser extent in many cases. It is, as McCracken J. pointed out in Re Ansbacher (Cayman) Ltd, the case that persons who wish to restrain an alleged defamation are required to be named and are, in practice, required to at least generally identify the defamatory material which it is believed is likely to be published. Plaintiffs who wish to restrain the use or publication of undoubtedly confidential material arising in, for example, a commercial context, are also required to be named though it has to be said that it may be possible to frame such proceedings and the evidence presented in a way which does not disclose in detail the confidential information concerned. Nonetheless such parties will be required to bring into the public domain at least such a sufficient description of the material concerned as may be necessary for the determination of the proceedings and the making of any appropriate order.”

42.  The Applicant refers to paragraph 4.2 of the judgment of Clarke J. in Doe & Doe v The Revenue Commissioners where it was inter alia observed that “[w]hatever may be the position of compliant taxpayers, it is difficult to see how any constitutional entitlement could be asserted which would prevent the public generally from being made aware of the manner in which others have failed to meet their tax obligations.” The Applicant states that as he is a compliant taxpayer, the judgment in Doe has no relevance to him.

43.  Throughout his submissions, the Applicant emphasises (in also seeking to distinguish the decision in Doe) that his application for judicial review is not about tax but is, rather, about his data which is stored in the Revenue system. He contends, for example, that the Respondent used his data to make a refund, which he states was owed to him, to be set at nought.

44.  In Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 IR 284, the Supreme Court considered the court’s common law power to direct an in camera hearing, having regard to the provisions of Article 34.1 of the Constitution which provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public and further considered the provisions of Article 6 of the ECHR. After analysing a number of statutory provisions and case law, including In re R Ltd [1989] I.R. 126; Irish Times Ltd v Ireland [1998] 1 IR 359; O’Donnell J. in Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 IR 284 at paragraph 45, summarised the applicable principles, as follows:

“(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance;

(ii) Article 34.1 itself recognises, however, that there may be exceptions to that fundamental rule;

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. Here that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme;

(vi) While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public;

(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera.”

ASSESSMENT & DECISION

45.  The decision of the Supreme Court in Gilchrist eschewed, as incorrect, an approach which contemplated only two binary options, i.e., a hearing in camera or a hearing in public. Rather, a sceptical and incremental approach which examined lesser steps which might meet the legitimate interests involved was preferred including, by way of example, considerations of anonymising witnesses, orders that witnesses may not be photographed or identified in any way, whether any part of the hearing may be conducted in public, whether it was possible in respect of any hearing that was held in private that a redacted transcript of proceedings can be released to the media.

46.  For the following reasons, I am of the view, notwithstanding the comprehensive submissions of the Applicant, that his application is misconceived and incorrect, (including having regard to section 156 of the 2018 Act). Further, I do not consider that the arguments of the Applicant are exceptional in the Gilchrist sense or that there are any intermediate steps, along the spectrum book-ended by an in camera hearing, at one end, and a public hearing, at the other, such as the use of initials, a process of redaction or any process of anonymisation, is warranted in this case. For the following reasons, therefore, I am of the view that this application for judicial review should be conducted fully in public.

47.   In Doe & Doe v The Revenue Commissioners, Clarke J. was not satisfied that the fact that publicity attaching to proceedings might be counterproductive to the benefit of bringing proceedings from an intended plaintiffs’ perspective constituted a basis for anonymisation and observed as follows at paragraphs 4.18 of his judgment:

“There is, in my view, a distinction of some importance to be drawn between, on the one hand, a case where the benefit of bringing proceedings (even if they be successful) would be impaired (even to a significant extent) by the necessity to have the proceedings conducted in full publicity, and on the other hand, a situation where the very outcome of the proceedings themselves could be affected by such publicity. Each of the judgments of the Supreme Court in Irish Times emphasised the heavy constitutional weight to be placed on ensuring that the administration of justice is conducted in a fair manner. Publicity which might affect the fair and just result of proceedings has the potential, therefore, to be a significant interference with the administration of justice. In those circumstances significant weight has to be attached to a consideration of measures which may be designed to promote the likelihood of a fair and just result to litigation. I was not satisfied that an equivalent weight ought be attached to circumstances where there was no risk that the ultimate determination of the court, in the exercise of the administration of justice, would be other than fair, but where it might be said that publicity attaching to proceedings might, even to a significant extent, devalue the benefit of bringing the proceedings on anything other than an anonymous basis.”

1. Clarke J. set out his conclusions on the plaintiffs’ application made at paragraph 5.1 of the judgment as follows:

“For the reasons which I have sought to analyse I was not, therefore, satisfied that the court had any jurisdiction to permit proceedings such as those intended by the plaintiffs to be conducted on an anonymous basis. I was not satisfied that any entitlement to confidentiality concerning their tax affairs which the plaintiffs might assert could be of sufficient weight to countervail, even to a limited extent, the constitutional imperative to the effect that justice be administered in public. Nor was I satisfied that a requirement that the proceedings be brought in the names of the plaintiffs amounted to an infringement of the plaintiffs undoubted right of access to the courts. The fact that the plaintiffs might be discouraged from bringing proceedings if not permitted to bring them anonymously was not, of itself, in my view, a sufficient reason to give rise to a jurisdiction to permit the proceedings to be brought anonymously. Nor, in my view, was the fact that some of the purpose of the proceedings might be lost, in practice, a sufficient factor to give rise to a constitutional jurisdiction to permit these proceedings to be brought anonymously.”

49.  As it happens, arising from the decision of the court in Doe & Doe v The Revenue Commissioners, which required the plaintiffs to bring the proceedings in their own names, they decided not to proceed with the substantive proceedings.

50.  In the case before me, the Applicant had already brought the application for judicial review in his own name and had not sought to have the leave application anonymised for that purpose or that reporting restrictions apply to the leave application. His application in that sense has a retrospective quality to it. Further, whatever about the question of the mootness of the substantive proceedings, which the Applicant submits will result from the refusal of this application, there is no suggestion that those proceedings would be conducted unfairly.

51.  In relation to the Applicant’s arguments concerning the position of the ECHR in our constitutional architecture, it is clear that, whether or not legal arguments by reference to the ECHR and the Constitution come first or second in time or in sequence, the important issue is that the provisions of the Constitution are properly considered and addressed (see the judgment of the Supreme Court in joint cases Gorry & Anor v The Minister for Justice & Equality and ABM & BA v The Minister for Justice [2020] IESC 55 at paragraph 209 per McKechnie J.) as the Oireachtas could not, in the absence of a constitutional amendment, have elected to treat the ECHR as if it were some form of shadow or substitute Constitution (see the judgment of the Supreme Court in Clare County Council v McDonagh & Anor and Irish Human Rights and Equality Commission (Amicus Curiae) [2022] IESC 2 per Hogan J. at paragraph 52).

52.  As these authorities make clear, the Long Title to the European Convention on Human Rights Act 2003 states that the giving effect to the ECHR in our domestic law is subject to the provisions of the Constitution and, therefore, the ECHR does not have direct effect. Without a constitutional amendment, the Oireachtas could not have elected to treat the ECHR as if it were some form of proxy or substitute constitutional measure.

53.  As just mentioned, (and paraphrasing Hogan J. in Clare County Council v McDonagh) the precise sequence in which the ECHR or the Constitution is considered, in any relevant litigation, is not predetermined or prescribed so long as the Constitution is also properly considered and addressed at the same time as the ECHR because to do otherwise would be yielding a form of quasi-constitutional primacy to the ECHR, which it has never been afforded.  

54.  Further, as explained by the Supreme Court (Hogan J.) in Clare County Council v McDonagh [2022] IESC 2, at paragraphs 51 and 52 of the judgment, the Charter has, as an EU measure, in principle, direct effect in Irish domestic law, subject only to the conditions of its application specified in Article 51 (the Member State must be implementing EU law) and Article 52 (inter alia the rights prescribed in the Charter are interpreted in harmony with the Member State’s traditions), because Article 6(1) Treaty on European Union (TEU) prescribes that it “shall have the same legal value as the Treaties” and because the State is empowered to ratify the TEU in accordance with Article 29.4.6 of the Constitution. In contrast, by virtue of the European Convention on Human Rights Act 2003, the ECHR has – pursuant to Article 29.6 of the Constitution – been given effect in Irish law without direct effect and at sub-constitutional level.

55.  In relation to the Applicant’s general arguments concerning anonymity, it is noted that the Oireachtas has provided for anonymity in certain circumstances, for example, section 27 of the Civil (Miscellaneous Provisions) Act 2008 provides for anonymity in civil proceedings in relation to a medical condition of a relevant person and section 26 of the International Protection Act 2015 provides for the protection of an applicant’s identity.

56.  In terms of tax matters, section 949Y(1) of the Taxes Consolidation Act 1997 (“the 1997 Act”) provides that subject to sections 949Y(2) and 949Y(3) of the 1997 Act, all hearings are to be held in public. Section 949Y(2) of the 1997 Act provides that the Appeal Commissioners may direct to hold a hearing, or part of a hearing, in private in certain specified situations including where they consider the giving of such a direction is necessary in the following circumstances: (a) in the interests of public order or national security; (b) to avoid serious harm to the public interest; (c) to maintain the confidentiality of sensitive information; (d) to protect an individual’s right to respect for his private and family life; or (e) in the interest of justice. Section 949Y(3) of the 1997 Act provides that the Appeal Commissioners must hold a hearing or part of a hearing in private where an appellant request they do so. Requests can be made by way of application for a direction or can be included in the statement of case and section 949Y(4) of the 1997 Act provides that an appellant can submit a request for a private hearing up to 14 days after being notified of a hearing. (The Applicant submits that, in his experience, many of these appeals are in fact redacted having regard to the provisions of section 949Y(2)(d) of the 2018 Act).

57.  As set out earlier, in the letter dated 22^nd February 2021 from the Respondent, the Applicant was advised that the Respondent was unable to accede to his request under Article 17 of the GDPR and that if he disagreed with that decision, he had the right to make a complaint to the Data Protection Commissioner. He chose not to do so and, rather, proceeded by way of judicial review under Order 84 RSC. The Applicant submits that his preference was to pursue the route of judicial review rather than make a complaint to the Data Protection Commissioner (though he submits that the DPC was contacted by him during Covid-19 but that he decided to proceed by way an application for judicial review). The Applicant refers to section 117 of the 2018 Act (‘Judicial Remedy for infringement of relevant enactment’) and, in particular, section 117(1) of the 2018 Act which refers to “[s]ubject to subsection (9), and without prejudice to any other remedy available to him or her, including his or her right to lodge a complaint, a data subject may, where he or she considers that his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment, bring an action (in this section referred to as a “data protection action”) against the controller or processor concerned.” (The Applicant relies on the portion of the quotation underlined).

1. Part 6 of the 2018 Act comprises Chapters 1 to 8 which includes sections 105 to 156 of the 2018 Act. Section 117 of the 2018 Act provides for “Judicial remedy for infringement of relevant enactment” and (subject to section 117(5) and (6), the Circuit Court has concurrent jurisdiction with the High Court).

1. Section 117(4) of the 2018 Act provides that a court hearing a data protection action shall have the power to grant to the plaintiff one or more of the following reliefs: (a) relief by way of injunction or declaration; or (b) compensation for damage suffered by the plaintiff as a result of the infringement of a relevant enactment. Section 156 of the 2018 Act provides that the whole or any part of any proceedings under this Part may, at the discretion of the court, be heard otherwise than in public. The reference to “this Part” is a reference to “Part 6” of the 2018 Act and the legal proceedings which are prescribed therein, including, for example, those provided for in section 117(4) of the 2018 Act. Section 156 of the 2018 Act does not include or refer to the type of challenge brought by the Applicant in this case, i.e., by way of judicial review.

1. Notwithstanding the Applicant’s comprehensive written and oral submissions, his attempt, in this interlocutory application, to invoke section 156 of the 2018 Act, is misconceived.

1. In addition, it is noted that the Applicant has sought an order directing either an in camera hearing or anonymisation, mid-stream as it were, after leave to apply for judicial review had been granted, and the matter, has been before the court in the Non-Jury/Judicial Review List of the High Court without anonymisation or redaction on multiple occasions. To that extent, it is the Applicant who has brought his own tax affairs back into focus.

1. Further, the Supreme Court gave a detailed determination refusing the Applicant’s application for leave to appeal in relation to the decision of the Court of Appeal delivered on 31^st July 2015 which in turn referred to the two judicial review appeals brought by the Applicant to the Court of Appeal.

1. The Supreme Court (Denham CJ., Laffoy J. and Charleton J.) in O’Neill v Revenue Commissioners & The Attorney General [2016] IESCDET 9, for example, refused the Applicant leave to appeal from the judgment of the Court of Appeal (Ryan P., with whom Kelly J. and Hogan J. agreed) delivered on 31^st July 2015, which decided the Applicant’s appeals from both cases of judicial review, which he had brought to the Court of Appeal. The Applicant had sought an order quashing the financial assessment made against him and an order of mandamus requiring a letter from the respondent stating: “[w]e have examined your expression of doubt and in accordance with Section 995(4) (a) hold that it is genuine; we will be treating you as though you have made a full and true return.” The Applicant had stated that he was seeking a declaration that section 955(4) of the Taxes Consolidation Act 1997 along with the Taxes (Electronic Transmission of Income Tax and Capital Gains Tax Returns under Self-Assessment) (Specified Provision and Appointed Day) Order 2001 (S.I. 441 of 2001 (ROS: Revenue Online Service)) was unconstitutional. The Applicant had also sought a declaration that the method used by the respondent to define “Trade”, “the Badges of Trade”, which was a 1954 UK Royal Commission, was unconstitutional. The fact of these matters remains in the public domain.

1. In the circumstances, I shall refuse the Applicant’s interlocutory application for an order that his substantive judicial review proceedings be heard otherwise than in public or in camera and I shall also refuse the application that those proceedings be anonymised.

PROPOSED ORDER

1. Accordingly, I will make an order refusing the Applicant’s application for an order that his substantive judicial review proceedings be heard otherwise than in public or in camera and I shall also refuse the application that those proceedings be anonymised.

1. It was agreed at the hearing of this application on 11^th and 12^th April 2024 that any intended application for a preliminary reference to the CJEU would be left over until judgment was delivered on the Applicant’s in camera/anonymisation application. I will, therefore, put the matter in before me on Wednesday 5^th June 2024 at 10:15 to deal with this and any other ancillary and consequential matters which arise.