This section combines and modernises the provisions of the existing law relating to the summoning and examination of a bankrupt or of any person who might be involved in one way or another in dealing with the bankrupt or his property, or be capable of giving any information relating to his dealings or property. The power to summon and examine is a feature of bankruptcy legislation. The committee's recommendation that statutory effect be given to the rule that a bankrupt cannot refuse to answer a question which might incriminate him and that this principle should be extended to all witnesses is being implemented in subsection (4). This subsection, as well as subsection (3), correspond to similar provisions in section 245 of the Companies Act, 1963 which deals with the power of the court to summon persons for examination in a winding-up of a company by the court.
SECTION 21.
The general provision of section 21 is something that I agree with. Imposing an obligation on the bankrupt in these circumstances is correct. I have doubts about the operation of subsection (4). The Minister mentioned the relevant section in the Companies Act. I do not have the Companies Act here with me but the Minister might read the section for us. This is very like a section that went into the Criminal Justice Act in the last six months, where a person who refused to answer certain questions, or a person was under an obligation to answer questions but he having answered the questions in response to a particular statutory provision, the evidence gained therefrom could not be used in any civil or criminal proceedings against that person. I expressed the view at the time that it cannot work. You cannot just separate people's answers into categories and say: "You are to answer this question; you are to tell me fully what the position is but there will be no criminal proceedings arising as a result of your answer". You are inviting people to commit perjury that way. People will not believe that if they answer truthfully it cannot be use in evidence against them. It will be a very difficult law to enforce. In addition, problems could arise with regard to investigative agencies arising out of questions the answers to which disclosed an offence or whether or not subsequent evidence gathered as a result of those answers is similarly tainted, in other words, whether it taints the down-stream evidence. I am concerned about it here. I would like the Minister to instruct us with regard to the section in the Companies Act. It is referred to in section 245. The explanatory memorandum says that subsection (4) gives effect to the committee's recommendation that statutory effect should be given to the rule that a bankrupt cannot refuse to answer a question which might incriminate him and that this principle, which was enunciated in ex parte Schofield, 6 Chancery Division, page 230, should be extended to all witnesses. It appears to me that this judgment is in another jurisdiction where the constitutional safeguards which apply in this country do not apply. Would the Minister have another look at that provision or educate me a little bit further so that I could see whether I can justify supporting the Minister? Despite what people might think, I am pre-disposed to supporting the Minister, on all occasions.
I thank the Senator. The purpose of the provision is to enable the Official Assignee to carry out his duties rather than to go on a fishing expedition to acquire evidence to incriminate the person elsewhere. I have a supplementary note on the section which I will read, which, I think would be helpful. At present a bankrupt cannot refuse to answer any question which might incriminate him since he is bound to make a full disclosure of his property to his creditors. A witness, however, summoned for examination as to the property of a bankrupt is entitled to refuse to answer a question on the grounds that his answer would tend to incriminate him. The committee proposed to extend the rule applicable to the bankrupts to witnesses as well.
However, in the McAllister case (Irish Reports, 1973) Judge Kenny raised but expressly declined to pronounce on the question of the constitutionality of compelling a bankrupt or other person to answer a question if the answer might incriminate him but suggested that a bankrupt or other person might decline to answer such a question apparently on the basis that the statutory obligation was to answer lawful questions of the court. He pointed out that the bankruptcy judges recognised that there was a rule of law conferring a right against self-incrimination. In view of the dicta in theMcAllister case this matter was carefully considered and following consultations we are satisfied that the provisions in the Bill which, as Senator O’Leary says, are modelled on section 245 of the Companies Act, 1963 do not provide for the abolition of the protection against self-incrimination in view of the provision that the answers of the person concerned cannot be used against him in other proceedings. The protection against self-incrimination is against risk, not against admission. Furthermore, to allow a bankrupt or any other person to refuse to answer any lawful question would defeat the whole purpose of the examination. The advice I have from the Attorney General is that there would not be a constitutional problem with the section.
I have the text of section 245 of the Companies Act, 1963. I would like to read that both for the benefit of Senator O'Leary and to put it on the record in this context. Section 245(1) states:
The Court may at any time after the appointment of a provisional liquidator or the making of a winding up order summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company or any person whom the court deems capable of giving information relating to the promotion, formation, trade, dealings, affairs or property of the company.
Section 245(2) of the Companies Act states:
The Court may examine him on oath concerning the matters aforesaid either by word of mouth or by written interrogatories, and may reduce his answers to writing and require him to sign them.
Section 245(3) says:
The Court may require him to produce any books and papers in his custody or power relating to the company but where he claims any lien on books or papers produced by him, the production shall be without prejudices to that lien and the court shall have jurisdiction in the winding up to determine all questions relating to the lien.
Subsection (4) says:
A person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of the answers of such person shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer.
Subsection (5) says:
If any person so summoned after being tendered a reasonable sum for his expenses refuses to come before the court at the time appointed not having an excuse (made known to the court at the time of its sittings and allowed by it) the court may cause him to be arrested and brought before the court for examination.
As you can see, the section I am proposing here is modelled on the Companies Act, particularly section 245, subsection (4) of which deals with the problems of self-incrimination and the inadmissibility of that evidence in other proceedings.
I think I would I be correct in saying there is a similar provision against self-incrimination in the Tribunal of Inquiries legislation, the legislation, for example, that set up the current inquiry that is taking place in relation to the Kerry case in which the evidence of witnesses at a tribunal of inquiry cannot be used against them. Perhaps the Minister could confirm that that is the case, that that legislation contains a similar provision to subsection (4) here?
Without having any note on it at all, I think the Deputy is correct.
Is Senator O'Leary happy with that?
I will have a look at it again.
I am not happy but really I am not sufficiently sure of my ground to put in an amendment. I am concerned with regard to the other persons. I am not really concerned about the bankrupt, it is reasonable that the bankrupt should make a full disclosure in the sense that any other provision would make the bankruptcy investigation impossible, but whether other people should be capable of being examined. What it actually says is that he must answer any question. It is not any question relating to the bankrupt's affairs. It is any question about what day it is or whether he slept with another man's wife last night. You are putting on him an absolute responsibility to answer any question. That is a very serious thing in the case of a person who is maybe only peripherally involved. I am not sufficiently sure of my ground to put in an amendment. I would like the Minister to have a look at it but I am certainly not going to put down an amendment. I am particularly worried about the other person aspect.
First of all, we are not making any change in the situation of the bankrupt because he has to answer now anyway. We are making a change in the case of witnesses. If you look at subsection (4) it says "a bankrupt or other person who is examined under this section". If you look at section 21 (1) there it outlines the range of the section. So I do not think the idea of a witness being compelled to answer questions about extraneous matters could arise because he can only be questioned under the section.
I would say that the Minister might look at it from the point of view of a person who falls within the definition of section 21(1) and he is a person who is suspected to have in his possession or control any property of the bankrupt or to have disposed of any property, et cetera. Having qualified under that provision, can he then be examined about anything? He could be examined under this section but not about the matters arising in respect of that section only. He could be asked about other questions. I do not see any reason why not.
Any witness in any court case can be examined only about matters that are relevant.
This is a specific statutory provision. We are making a specific statutory provision.
I would not think it was a problem.
Perhaps the Minister's undertaking will be accepted.
It is worth looking at any point that is raised and coming back again on Report Stage. I will do that. I do not think there is a problem with the section but I will look at it.