Investigation Protocol

4. THE INVESTIGATION

4.1 This section deals with cases where the Commission is obliged or has decided to initiate an investigation. As already indicated, it is likely that, in most such cases, that decision will be made only after a preliminary inquiry into the complaint has been carried out and the report on that inquiry considered by the Commission.

4.2 Section 32(1) of the Ethics Act, so far as it relates to the Commission, provides that it shall hold sittings for the purpose of an investigation by it under the Act and further provides that it may receive submissions and evidence as it thinks fit at such sittings. Section 32(6) goes on to make detailed provision for the calling of witnesses at such sittings and other related matters. Further and more detailed reference will be made to the provisions of section 32(6) below.

4.3 Regardless of whether a preliminary inquiry had been conducted or not, it will normally be necessary for the Commission to obtain statements from potential witnesses and relevant documentation will also have to be obtained. The Commission anticipates that, in many cases, such statements and other material will be voluntarily furnished to it. Where necessary, however, the chairperson of the Commission will exercise the power to give directions conferred on him/her by section 32(2) of the Ethics Act and in particular section 32(2)(c) and (d). In addition, section 18 of the Standards Act permits the chairperson of the Commission to give directions to "any person" to make discovery on oath of any documents relating to any matter relevant to the functions of the Commission.  (It should also be noted in this context that section 19 of the Standards Act imposes on persons an obligation to preserve documents or information in their possession or control which he or she knows to be relevant to an investigation or intended investigation of the Commission until the investigation and any related proceedings are completed.)  In certain cases - where, for instance, the chairperson proposes to exercise the power under section 32(2)(d) of the Ethics Act or section 18 of the Standards Act to direct the production of private bank accounts of the person the subject of the investigation - he or she will normally be notified of the proposal to give such a direction and afforded an opportunity to make any representations he or she wishes to make in that regard. In other cases, however, a direction under section 32(2) or section 18 may be given without any reference to the person the subject of the investigation. The precise steps taken by the Commission will vary from one investigation to the next, as will the duration of this stage of the Commission's work.

4.4 The Commission may, as it considers appropriate, hold a preliminary sitting (and, where necessary, more than one such sitting) for the purposes of dealing with any preliminary and/or procedural issues arising in relation to the particular investigation it is carrying out.

4.5 Prior to holding any sitting for the purposes of hearing evidence or receiving submissions in connection with its investigation (other than the preliminary sitting or sittings already referred to), the Commission will, in accordance with the provisions of section 32(6)(a) of the Ethics Act, notify the person the subject of the investigation of the date, time and place of the relevant sitting of the Commission. Where the investigation arises from a complaint made under section 22 of the Ethics Act or section 4 of the Standards Act, the complainant will receive a similar notification. To the maximum extent practicable, sittings of the Commission will be scheduled for a date and time that suits all interested parties. Sittings of the Commission will normally be held in the Commission's premises at Leeson Street. However, an alternative venue may be utilised by the Commission as it considers appropriate.

4.6 Again, prior to holding any sitting for the purposes of hearing evidence or receiving submissions (other than the preliminary sitting or sittings already referred to), the Commission will, in accordance with the requirements of section 32(6)(b) of the Ethics Act, give the person the subject of the investigation certain specified information relating to the investigation, including a statement of the contravention of the Ethics Acts alleged and copies of any statements intended to be used by the Commission. The Commission will also endeavour to comply with any reasonable request made by or on behalf of the person the subject of the investigation in relation to the exercise by the chairperson of his/her powers under section 32(2) of the Ethics Act for the purposes of securing the attendance of witnesses and/or the production of documents which that person wishes to present to the Commission.

4.7 The Commission will, in accordance with the requirements of section 32(6)(c), (f) and (g) of the Ethics Act, ensure that the person the subject of the investigation will be entitled to present his or her case to the Commission, to cross-examine witnesses called by the Commission and to call witnesses on his or her own behalf. The order in which witnesses will be called to give evidence will be determined by the Commission. The Commission will also determine whether or not evidence should be given on oath. However, while there may be exceptional cases which, for example, involve no disputed issue of fact and where sworn evidence may therefore appear unnecessary, the Commission envisages that evidence will normally be given on oath. Where evidence is being given on oath, the chairman of the Commission will administer the relevant oath to each witness. Where a witness objects to taking an oath, the witness will instead be asked to affirm.

4.8 A witness whose evidence had been, is being or is to be given before the Commission in proceedings under the Ethics Acts is entitled to the same privileges and immunities as a witness in a court, save that such witness cannot refuse to answer a question or refuse to produce a document on the ground that the answer or document might incriminate him or her. (See section 32 of the Ethics Act and section 16 of the Standards Act). However, any statement or admission made by a person before the Commission (or an inquiry officer or person appointed under section 32(4A) of the Ethics Act, as amended) shall not be admissible as evidence against that person in any proceedings, other than proceedings for breach of the provisions of section 32(4) (failure to obey a direction to attend and failure/refusal to answer a question or produce a document) and 35(5) (giving false evidence) of the Ethics Act or section 17 of the Standards Act (obstruction of the Commission).

4.9 The Commission shall, as far as practicable, ensure that the evidence of all relevant witnesses is presented. Witnesses called by the Commission will be examined by the Commission or its legal advisers and will then be subject to cross-examination by or on behalf of the subject of the investigation. Where the person the subject of the investigation gives evidence and/or calls witnesses, they will be subject to cross-examination by or on behalf of the Commission.

4.10 The Commission is also empowered, where for sufficient reason it considers it appropriate to do so, to arrange for the examination of a person at any place in or outside the State by a member of the Commission, a member of the staff of the Commission or any other person and the evidence of that person will be admissible for the purposes of an investigation being conducted by the Commission: section 32(4A) & (4B) of the Ethics Act (inserted by Schedule 1 of the Standards Act).

4.11 Written statements may be admitted into evidence by the Commission, provided that the person the subject of the investigation consents to same. The Commission intends to avail of this procedure to the maximum possible extent, particularly where the statement concerned deals with uncontroversial issues and/or is directed to the proof of formal matters. The power to admit any written statement into evidence does not, however, prejudice the powers of the Commission, through its chairman, to direct the attendance of persons before the Commission for the purposes of giving evidence and/or producing documents where the Commission considers it appropriate.

4.12 The Commission will, subject to the provisions of the Ethics Act, rule on any evidential issues which may arise in the course of an investigation being carried out which appear to require determination by the Commission, including issues relating to the admissibility of evidence, (including any issue concerning privilege claimed by a witness), issues relating to relevance and issues as to the proper scope of the examination and cross-examination of witnesses before the Commission. Where objection is taken to any evidence (oral or otherwise) given or intended to be given before the Commission, the Commission shall consider such objection and rule on same as it considers appropriate.

4.13 The Commission will, subject to the provisions of the Ethics Act, rule on any procedural issues which may arise in the course of an investigation being carried out which appear to require determination by the Commission. Where objection is taken to any procedures adopted or intended to be adopted by the Commission, the Commission shall consider such objection and rule on same as it considers appropriate.

4.14 Any signature appearing on a document produced before the Commission (including, but not limited to, a witness statement) shall, in the absence of evidence to the contrary, be taken to be that of the person whose signature it purports to be.

4.15 The proceedings of the Commission shall be recorded in such manner as the Commission shall determine and such record of the proceedings prepared as may be directed by the Commission shall accurately set out such proceedings.

4.16 Sittings of the Commission for the purposes of an investigation by it under the Ethics Acts shall be held in public save where otherwise directed by the Commission pursuant to section 32(9) of the Ethics Act. The Commission may, at its discretion, direct that the whole or any part of any such sitting shall be held in private where it considers it appropriate to give such a direction. In determining whether or not to hold any sitting of the Commission in private, the Commission will have regard to, but will not be bound by, the views (if any) of interested parties, including in particular the views of the person the subject of the investigation. Where a sitting of the Commission, or any part of it, is held in private, the provisions of section 35(1) of the  Ethics Act, which prohibit the disclosure by any person of information obtained by being present at such a private sitting, will apply.

4.17 Nothing in the previous paragraph, or in any other part of this document, prejudices or affects the capacity of the Commission to meet in private session from time to time where same appears expedient for the due discharge by the Commission of its functions under the Ethics Act or Standards Act or confers on any person any entitlement to be present at such private sessions.

4.18 The Commission may be assisted in the carrying out of investigations under the Act by such legal advisers as it appears appropriate to the Commission to retain. Such legal advisers may, at the request of the Commission and on its behalf, examine or cross-examine (as the case may be) witnesses called to give evidence before the Commission. Such legal advisers may also, at the request of the Commission, make submissions to the Commission on such matters as the Commission may consider appropriate. The Commission's legal advisers may also give such legal advice to the Commission as it may require. The Commission's legal advisers shall have no role in the Commission's decision-making but may give legal advice in relation thereto if so requested by the Commission.

4.19 The person the subject of the investigation may present his or her case to the Commission in person or through a legal or other representative. That person may, by him or herself or by such representative, make an opening statement to the Commission, may examine or cross-examine (as the case may be) witnesses called to give evidence before the Commission and may address the Commission on relevant matters which arise in the course of the Commission's investigation and may make a closing submission to the Commission upon the conclusion of the evidence.

4.20 Section 32(5) of the Ethics Act provides that, if a person gives false evidence before the Commission in such circumstances that, if he or she had given that evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence. It is also an offence to fail or refuse to attend before the Commission when directed or, being in attendance, to refuse to take the oath if required to do so, to refuse to answer any question put to which the Commission is entitled to require an answer or to produce any document which the Commission legally requires: section 32(4). Obstruction of the Commission is a separate offence under section 17 of the Standards Act.

4.21 Where a witness is directed to attend before the Commission pursuant to section 32(2)(b) of the Ethics Act, the reasonable expenses of that witness shall be paid out of moneys provided by the Oireachtas. What will constitute reasonable expenses will vary from case to case. In the event of a dispute, the Commission will determine the appropriate amount of expenses. Where a witness is directed to attend before the Commission under this provision, a sum in respect of the expenses of his or her attendance, equivalent to the sum which a witness summoned to attend before the High Court would be entitled to have tendered to him, will be tendered to such witness at the same time as he or she is served with the direction in question. This sum - referred to in the context of court proceedings as a ‘viaticum" - is intended to cover the cost of travel and related costs.

4.22 Section 9 of the Standards Act permits the Commission to make orders in relation to the costs incurred by any person appearing before it. Section 9 is addressed further in section 7 of this document

4.23 The Commission may adjourn or postpone proceedings in relation to an investigation under section 23 of the Ethics Act as it considers appropriate. This power might, for instance, be exercised where criminal proceedings were being considered, or had been brought, by the Director of Public Prosecutions arising from the same matters as were the subject of the Commission's investigation. Where the Commission exercises this power, it may, if it considers it appropriate to do so, furnish an interim report on its investigation.

4.24 If, at any time in the course of investigating a complaint made to it, or referred to it, under section 22 of the Ethics Act, section 4 of the Standards Act or section 174 of the Local Government Act, other than a complaint made by a member or a person referred to in paragraphs (c) or (d) of section 22(4) of the Ethics Act, the Commission forms the opinion that the complaint concerned is frivolous or vexatious, it may discontinue such investigation, in which case the provisions of section 31(3) and 31(4) of the Ethics Act shall apply.

4.25 Where the Commission, either during or at the conclusion of an investigation under section 23, forms the opinion that the person the subject of the investigation has not contravened the provision of the Ethics Act, Standards Act or Part 15 of the Local Government Act to which the investigation relates but may have contravened another provision of Part II, III or IV of the Ethics Act, the Standards Act or Part 15 of the Local Government Act, it may carry out an investigation to determine whether the person concerned has contravened that other provision.

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