The High Court has dismissed a claim by a Dublin solicitor, John Caldwell, that his right to privacy was breached by the Mahon planning tribunal's decision to publicly inquire into a number of land deals in Co Dublin in which Mr Caldwell was allegedly involved with former Fianna Fáil TD Liam Lawlor and businessman Jim Kennedy.
Mr Justice Michael Hanna yesterday delivered his reserved judgment on the final ground - relating to right to privacy issues - of the legal challenge brought by Mr Caldwell to the Mahon tribunal decision of November 2003 to proceed to its Carrrickmines Two and Related Issues Module.
Mr Caldwell, St John's, Isle of Man, had claimed the public hearings would disclose his confidential business affairs and that he would have to attend unnecessary hearings which breached his rights to privacy under the Constitution and the European Convention on Human Rights.
Mr Justice Hanna found that the right to privacy is a fundamental personal right of a citizen which may extend, but only at the outer reaches of the core right, to their business dealings with others. It was not an unqualified right and it could be encroached upon in the interests of the common good, subject to the requirements of constitutional justice and fair procedures.
The exigencies of the common good included a situation where the Oireachtas had determined, as in this case, that matters of public interest be urgently inquired into, and it had established a tribunal for that purpose.
In any event, the judge noted, details of Mr Caldwell's business dealings had come into the public domain in the opening statement of the tribunal at the beginning of the Carrickmines Two module in January 2004.
Because the European Convention on Human Rights Act 2003 was not part of Irish law at the time Mr Caldwell brought his challenge, the judge did not make any formal findings on Mr Caldwell's claim that the tribunal's decision to move to public hearings breached his right to privacy under article 8 of the convention.
However, in the event of Mr Caldwell bringing an appeal to a higher court, the judge said it was his view that the convention's rights to privacy could also be qualified by the exigencies of the public interest and the common good. The tribunal was inquiring into matters of urgent public importance and its inquiry was necessary to protect the integrity of public life, without which a successful democracy could not flourish.
In June last year, Mr Justice Hanna had dismissed all other grounds of Mr Caldwell's challenge. However, he deferred judgment on the right to privacy point in light of a Supreme Court decision of May 2005 holding that the European Convention on Human Rights Act 2003 could not be applied retrospectively.
The High Court case had been heard on the basis that the Act did apply retrospectively, so the judge adjourned the final point for new submissions to be made on the basis of the Supreme Court decision.
The action arose from the tribunal's decision to proceed in its Carrickmines Two module to public hearings into the ownership of lands at Coolamber, Lucan, and six other parcels of land in Co Dublin. The Carrickmines Two module follows on from the Carrickmines One module, which inquired into claims that councillors were bribed to secure the rezoning of other lands at Carrickmines.
Tribunal lawyers are investigating a possibility that a pattern of ownership for the Coolamber lands, allegedly involving Mr Caldwell, Mr Kennedy and Mr Lawlor, could have applied to the Carrickmines lands.
During the hearing before Mr Justice Hanna it was accepted by counsel for Mr Caldwell that Jackson Way Properties Ltd was the legal owner of the Carrickmines lands featured in the first module. The tribunal concluded in November 2004 that Mr Caldwell and Mr Kennedy were most likely to be the beneficial owners through shareholdings in offshore companies, but Mr Lawlor had denied that he was a beneficial owner.
