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(7th December 2007) It would be both impracticable, if not impossible, to provide an extensive Ruling, in the abstract, on the question of what constitutes evidence at this stage of the Tribunal’s proceedings. It seems preferable to indicate the Tribunal’s view of the matter in broad outline and by way of guidance which may be of some use to affected persons or entities when it becomes necessary to address the matter in more concrete terms once the Tribunal has notified its provisional findings. As has already been stated repeatedly the Tribunal is not bound by rules of evidence as applied by Courts in the determination of liability either in criminal or civil matters. This approach has been expressly approved by the High Court and Supreme Court, even in the case of adjudicative and adversarial Tribunal proceedings, in numerous cases since the decision in Kiley –v- Minister for Social Welfare (1977) 1I.R.267 where Mr. Justice Henchy stated: “Tribunals exercising quasi judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or fair result. I do not attempt an exposition of what they may not do for, to quote the frequently cited dictum of Tucker L.J. in Russell –v- Duke of Norfolk ‘there are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic Tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth’”1
See page 281 of the Report.
Accordingly rules of evidence will not be applied by the Tribunal with the same strictness as in either Civil or Criminal proceedings. At the same time, as has already been acknowledged in Part I of the Report of this Tribunal, findings should not be made or conclusions drawn which may have a significant impact on an individual or corporate or other entity where central elements of the relevant material have not, for example by reason of being hearsay, been subject to adequate scrutiny either by or on behalf of the Tribunal or by or on behalf of any affected person or entity.