THE HIGH COURT
			JUDICIAL REVIEW
			1998 No 187JR
BETWEEN
CARLOS SALINAS de GORTARI
			APPLICANT
AND
HIS HONOUR JUDGE PETER SMITHWICK
			RESPONDENT
AND
THE MINISTER FOR JUSTICE
			NOTICE PARTY
JUDGMENT of Mrs. Justice McGuinness delivered the 18th day of January 2000
	In these Judicial Review proceedings the Applicant seeks a number of declaratory reliefs arising from a proceeding taking place before the Respondent (The President of the District Court) pursuant to section 51 of the Criminal Justice Act, 1994.   Leave to issue Judicial Review proceedings was granted by McCracken J., on the 1st of May 1998.

BACKGROUND
	In February 1998, the Minister for Justice received from Patrick Fievet Premier Juge D’Instruction of the Tribunal De Grand Instance de Paris, a request for assistance in respect of certain enquiries being conducted by him into charges of laundering sums of money deriving from drug trafficking, partaking in international financial operations related to drug trafficking, complicity and illegal possession and other charges under the Code of Penal Procedure of the French Republic.   The Minister set in train the procedure set up under section 51 of the Criminal Justice Act, 1994 and nominated the President of the District Court to take evidence pursuant to that Act from the Applicant, Mr. Carlos Salinas de Gortari. The Applicant is the former President of the Republic of Mexico and is at present resident in this jurisdiction.   Prior to the issuing of his request to the Minister, M. Fievet had been in correspondence with the Applicant in regard to his giving evidence concerning the matters under investigation.   While the Applicant had been unwilling to travel to France to give evidence, he had readily agreed to give evidence in this jurisdiction.   In a letter to M. Fievet dated the 4th of December 1997 the Applicant had stated:

	“I know that you understand that, as a former President of a great sovereign nation, such a high mandate implies ethical and judicial imperatives compelling me to collaborate with you, under the terms of your invitation, in order to efficiently seek the truth”.

	In a later letter dated the 21st of December 1997 the Applicant stated:

	“It is in my interest to seek and attain the truth.   I remain at your entire disposition as to a date at your convenience as at the end of February 1998”.

	In a letter dated the 22nd of January 1998 the Applicant wrote that he gladly accepted M. Fievet’s proposal to hear him testify in Ireland in the early days of March 1998.
	The matter came on before the Respondent on the 4th, 5th and 6th of March 1998 and the Applicant appeared before him as a witness duly sworn.    The proceedings were also attended by the Juge D’Instruction, M. Fievet.   The Applicant was represented by Solicitor and Counsel.   The Applicant answered a very considerable number of the questions put to him by the Respondent but there were a number of questions put to him which he refused to answer in reliance, he claimed, on his right to silence.   These questions dealt in the main with three areas:-

(i)	His assets, real estate and properties.
(ii) 	Whether he was aware of the existence of the bank accounts opened in France by his brother Enrique Salinas and his step-daughter, Adriana la Garde, with the Société Genéral.
(iii)	The names of his banks in Mexico and Ireland.

	The Applicant expressly claimed that his refusal to answer these questions arose from a desire to maintain his privacy and confidentiality in relation to his personal financial affairs.   He did not put forward any grounds for believing that by answering the questions he would tend to incriminate himself, either in this State or in France.   In regard to the possibility of the Applicant being prosecuted in France, M. Fievet stated at the District Court hearing on the 5th of March 1998 that a witness against whom serious and concomitant elements of guilt should appear or exist cannot be heard as a witness by the investigating Magistrate.   This would cause the proceeding to be a nullity.   In that case, a witness against whom such elements of guilt or presumed guilt would exist could not be heard by the investigating Magistrate unless he had been charged prior to this hearing, which was in no way the case.   I understand this to mean that the very fact that the investigating Magistrate, or Juge D’Instruction, was questioning the Applicant as a witness meant that he was not a suspect since if he was a suspect he would have to be charged before being questioned.   Failure to obey these rules would render the whole proceeding a nullity.   
	Very considerable legal argument followed in the District Court as to whether the Applicant had a right to refuse to answer the questions or not.   Eventually, the learned President of the District Court ruled that the Applicant was obliged to answer the questions.   Upon the Applicant again refusing to do so, the Respondent was about to proceed to hold him in contempt and to deal with that situation.   However, the Applicant applied for the proceedings to be adjourned to enable the present Judicial Review proceedings to be brought.  Counsel for the State did not oppose this application.   The Respondent accordingly adjourned the proceedings and the Applicant issued his Judicial Review proceedings on the 1st of May 1998.
	A preliminary issue arose as to whether these Judicial Review proceedings should be held in camera;  this issue was argued before Geoghegan J., who, in a reserved judgment given on the 31st of July 1998, held that the Judicial Review proceedings must be held in public.   The decision of Geoghegan J., was subsequently upheld by the Supreme Court.   The substantive Judicial Review proceedings came on for hearing before this Court on the 17th of November 1999.   
	The Applicant in these proceedings seeks a number of declaratory reliefs as follows:-

(1)	A Declaration that the Applicant cannot lawfully be compelled to answer any question in respect of which he has indicated a desire to remain silent within the proceedings entitled:- 
		“Dublin Metropolitan District In the Matter of Section 51 of the Criminal Justice Act, 1994 and In the Matter of a Request for Legal Assistance from the Premier Juge D’Instruction Tribunal De Grand Instance de Paris, Paris, Republic of France in respect of an action involving The People -v- Person or Persons Unknown on charges of laundering of sums of money deriving from drug trafficking, partaking in international financial operations related to drug trafficking, complicity and illegal possession to Articles 81 and 151 and following of the Code of Penal Procedure of the French Republic and in an action of The People -v- Person or Persons Unknown on charges of misappropriation, misapplication and complicity as defined by Articles 81 and 151 and following of the Code of Penal Procedure of the French Republic”.
(2)	A Declaration that in order to exercise the right to remain silent in the said proceedings the Applicant is not obliged to satisfy the Respondent on oath that he is likely to incriminate himself if he were to answer the question.
(3)	In the event that the Declaration sought at paragraph 2 above is refused, a Declaration that in order to invoke the privilege against self-incrimination in the District Court proceedings aforementioned (as opposed to exercising the right to remain silent) it is sufficient for the Applicant to satisfy the District Justice on oath that he honestly believes that his answer might expose him to a risk of a criminal prosecution being instituted against in France.
(4)	An Order prohibiting the Respondent from compelling the Applicant to answer any questions in the said District Court proceedings including, which is contrary to the Declarations referred to at (1), (2) and (3) above (sic).

	The grounds upon which he seeks relief are set out in his originating statement.   A comprehensive statement of opposition was filed by the Notice Party, the Minister for Justice, on the 23rd of June 1998.   
	The procedure which is in issue in these proceedings is governed by section 51 of the Criminal Justice Act, 1994 and by the second schedule to that Act.   Section 51, where relevant, provides as follows:-

	“51(1)  This section shall have effect where the Minister receives - 
	(a)       From a Court or Tribunal exercising Criminal Jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or
	(b)	From any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies, 
		a request for assistance in obtaining evidence in the state in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
	(2)	If the Minister is satisfied -
	(a)	That an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
	(b)	That proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there, 
		he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.
	(3)	For the purpose of satisfying himself as to the matters mentioned in subsection (2)(a) and (b) of this section, the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.
	(4)	In this section “evidence” includes documents and other articles.
	(5)	The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used to any purpose other than that specified in the request.
	(6)	The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section.
	Section 51
	SECOND SCHEDULE
	Taking of evidence for use outside State
	Securing attendance of witnesses.
	1.	The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court.
	Power to administer oaths.
	2.	The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.
	Privilege of witnesses.
	3.
	(1)	A person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give
		(a)  in criminal proceedings in the State, or
		(b)  subject to subparagraph (2) of this paragraph, in criminal proceedings in the country or territory from which the request for the evidence has come.
	(2)	subparagraph (1)(b) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the court, tribunal or authority which made the request.
	(3)	where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions in this paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court, tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it, upholds the claim....”

	It is common case that the procedure under section 51 of the 1994 Act, is not “the administration of justice” as referred to in Article 34 of the Constitution.

SUBMISSIONS OF COUNSEL
		Senior Counsel for the Applicant, Mr. Clarke, put forward three main grounds for the reliefs sought by the Applicant.   He accepted that the procedure under Article 51 was a proper one given the nature of the request for legal assistance made by the Premier Juge D’Instruction;  this request fell within the parameters section 51(1) and (2) of the 1994 Act, and the Minister had acted correctly in nominating the President of the District Court to receive the evidence and give effect to the request.   However, he drew attention to the differences between criminal investigation procedure under the French (Civil Code) legal system and those which obtained in this (Common Law) jurisdiction.   The investigation being carried out by the Premier Juge D’Instruction, M. Fievet, was at a comparatively early stage;  no charges had yet been brought.   It was, Mr. Clarke submitted, comparable to the stage in this jurisdiction where the police are interviewing possible witnesses, or indeed suspects, during the course of a preliminary investigation and prior to charging any person with an offence.   This could be either by voluntary interviews or under section 4 of the Criminal Justice Act, 1984.   Such interviews would be governed by the Judges’ Rules and/or the regulations governing the treatment of persons in custody made under the Criminal Justice Act, 1984.   Persons questioned during this type of investigation would have a general right to silence except where there were specific statutory exceptions, for example under the Offences Against the State Act and under legislation regarding drug related offences.   Counsel submitted that in the Applicant’s case, when the investigation was at this preliminary stage, and given that the Applicant was not an accused person but simply a potential witness in the proposed French criminal proceedings, the Applicant should have the same general right to silence as would a person being interviewed by the police in an interview governed by the Judges’ Rules in this jurisdiction.   This, he said, would accord with Rule 3(1)(a) of the Second Schedule which provided  that a person should not be compelled to give any evidence which he could not be compelled to give in a criminal proceedings in the State.   Rule 3(1)(a) of the Second Schedule should be interpreted as giving a right to silence, or privilege against self-incrimination, which varied in accordance with the stage reached by the particular criminal investigation in relation to which the request for assistance was made by the foreign court or authority.   Since the enquiry in the present case was at a preliminary stage, the Applicant had a general right to refuse to answer any question if he so chose.   The procedure under section 51 was not equivalent to a criminal trial or even to the taking of depositions in the District Court.   Secondly, Mr. Clarke submitted that even if the Applicant had not a general right to silence he must have a general privilege against self-incrimination whether as regards possible criminal proceedings in this State or possible criminal proceedings in France.   This was relevant to the relief sought at paragraph 3 of the Applicant’s Notice of Motion.   Counsel stressed that if the Applicant was an accused in a criminal trial he would not be required to give any evidence at all, let alone self-incriminating evidence.   Here he was merely a witness and must be given the privilege against self-incrimination which would be given to any witness.   Rule 3 in the Second Schedule provided a double test in Sub-rule 3(1) (a) and Sub-rule (3) where, as in the present case, the claim of privilege was not conceded by the Foreign court or authority.  
	Thirdly, Counsel for the Applicant submitted that there was no express provision for compelling a witness to answer questions contained either in section 51 of the 1994 Act or in the Second Schedule.   No offence of refusing to answer a question was created;  no penalty for refusing to answer prescribed.   Rule 1 of the Second Schedule gave to the judge powers for “securing the attendance of a witness for the purpose of the proceedings” but went no further.   It was clear that at the conclusion of the proceedings in the District Court on the 6th of March 1998 the President of the District Court had intended to proceed by way of holding that the Applicant was in contempt and imposing a penal sanction. The imposition of penal sanctions, however, required specific and clear authority in a procedure such as that under section 51 which was governed by statute.   This was emphatically not the administration of justice under the Common Law.   Nor could the matter be dealt with under the Petty Sessions (Ireland) Act, 1851, section 13.   That section gave the District Court powers to find an uncooperative witness in contempt and to sentence him or her to specific periods of imprisonment, but it could not simply be imported by means of strained statutory interpretation into a completely different procedure under section 51 of the 1994 Act.
	Counsel for the Notice Party, Mr. Sreenan, submitted that the procedure set up by section 51 of the Criminal Justice Act, 1994 was a statutory procedure, clearly set out and defined by the terms of the statute.   It was sui generis, and not to be compared either with police investigation prior to charge, or with an actual criminal trial.   It was clear that the Second Schedule provided a self-contained code for the implementation of a request under section 51.   Clearly the statute, including the Second Schedule, must be given a purposive construction.   There would be little benefit in enacting the provisions regarding the existence of a privilege against self-incrimination if, in fact, a witness could refuse to answer any question at all even if no question of self-incrimination arose.   It was clear that paragraph 3(1) (a) of the Second Schedule was dealing with a situation where there would be a privilege against self-incrimination in the State.   The Applicant did not have a further right not to answer any question which would disclose matters private to him.   Mr. Sreenan argued that there was a clear codification of privilege set out in the Second Schedule of the 1994 Act.   The genesis of the Judges’ Rules was a Home Office circular issued some eighty years ago for the purpose of ensuring that the policemen were not over zealous or unfair in their dealings with the public and there was no basis in law for suggesting that these Rules could supersede the provisions of the 1994 Act.
	Mr. Sreenan drew attention to the long title of the 1994 Act which described it inter alia as an Act “to make provision for international co-operation in respect of certain criminal law enforcement procedures”.   He submitted that there was little point in enacting section 51 and the Second Schedule if the person summoned to give evidence could simply refuse to answer any question at will.   It was clear that the scheme of the Act envisaged questions being asked in relation to which there was an obligation to answer.
	With regard to the question of self-incrimination, Counsel for the Notice Party accepted that Rule 3(1) (a) of the Second Schedule was dealing with a situation where there would be a privilege against self-incrimination in the State.   However, he pointed out that the Applicant had not claimed the privilege against self-incrimination and had not brought any evidence before either the District Court or this court to ground such a claim.   He referred to Re Westinghouse Electric Corporation (No 2) [1997] 3 All ER 717 and submitted that it was for the Applicant to satisfy the President of the District Court that he had reasonable grounds for claiming the privilege against self-incrimination.   He had not yet attempted to do so and the relief claimed at paragraph (3) of his Notice of Motion was a moot.   He had, in any case, been informed by the Juge D’Instruction, M. Fievet, that he could not be questioned as a suspect by him without previously being charged with an offence, and that any attempt to do so would render the whole procedure null and void.
	With regard to the Applicant’s argument that there was no provision for the compelling of answers either in section 51 or in the Schedule, Mr. Sreenan submitted that Rule 1 of the Schedule should be given a purposive construction and would imply powers in the judge of the District Court for the compelling of answers, powers such as those set out in section 13 of the Petty Sessions (Ireland) Act, 1851.   To give the judge power to enforce the attendance of witnesses would be meaningless if there was no power to compel answers, thus giving the witness a total right to silence.   In the context of the purposive interpretation of the 1994 Act Mr. Sreenan referred to Bennion’s “Statutory Interpretation” [Second Edition] Part XX where in section 304 it is stated that a purposive construction of an enactment is one “which gives effect to the legislative purpose by...applying a strained meaning where the literal meaning is not in accordance with the legislative purpose”.   Mr. Sreenan submitted that this should be the approach to be taken by this court to the interpretation of the 1994 statute.

LAW AND CONCLUSIONS
	Firstly, it is necessary to keep in mind that the proceedings before the Respondent in the District Court under section 51 of the 1994 Act were not a trial and were not the administration of justice.   Secondly, Mr. Salinas de Gortari is not an accused person, either in this jurisdiction or in France.
	The procedure in question is indeed, as submitted by Mr. Sreenan, sui generis.  It is not, I think, valid to compare it either with an actual trial or with the police investigative procedure prior to charge under the Criminal Justice Act, 1984 or indeed with the taking of depositions in the District Court prior to sending an accused person forward for trial on indictment.   The section 51 procedure is a procedure governed by statute and must be considered within the bounds of that statute.   The rights of the Applicant are the rights of a witness, not of an accused, and his position cannot be compared to that of an accused person at a trial who is under no compulsion to give evidence at all.   His position is much closer to that of the Defendant in the case of Keegan -v- De Burca [1973] I.R. 223, which was opened to me by Counsel in the course of argument, but even that case deals with the Common Law applied in the context of the High Court, whereas in the instant case the question is of a specific statutory procedure in the context of the District Court.   
	While I appreciate that the Civil Code system as applied in the criminal law of France differs in many ways from the procedures of the criminal law in this jurisdiction, I do not accept that as a result the statutory procedure set out in the 1994 Act can in this case be equated with investigation and questioning carried out by the Garda Siochana under the Criminal Justice Act, 1984 nor indeed to a Garda investigation governed by the Judges’ Rules.   The Judges’ Rules, as pointed out by Counsel for the Minister for Justice, were designed to control investigations carried out by the police and cannot be imported by implication into a statutory procedure laid down by the Oireachtas where a witness is being examined under oath by a judge of the District Court, in this case by the learned President of the District Court.
	The long title of the Criminal Justice Act, 1994 provides that it is an Act
“...to make provision for international co-operation in respect of certain criminal law enforcement procedures...”     To that end the Act sets out a scheme whereby under section 51 legal assistance may be given to a foreign authority in obtaining evidence in this State in connection with criminal proceedings or a criminal investigation.   Under the Second Schedule Rule 1 provides that the District Court has power to compel the attendance of proposed witnesses and therefore the summons issued by the Respondent in the present case correctly notes at the end:

	“If without lawful excuse you do not obey this summons, a warrant may be issued for your arrest.”

Rule 3 provides certain safeguards for a witness taking part in this procedure.   The Applicant seeks to graft onto this scheme a general right to silence, a right in effect to refuse to answer any question.   The question of the right to silence of an accused person has been fully discussed by the Supreme Court in Heaney -v- Ireland [1996] 1 I.R. 580.   Here we are dealing with the rights of a witness who, under the Common Law, would be obliged to answer a question save for the safeguard of the privilege against self-incrimination.   The general rule, therefore, is that a witness is obliged to answer a question put unless he or she can establish that there are reasonable grounds to fear that the answer will tend to incriminate him or her.   The position is even more clear under the section 51 procedure where explicit provision for the privilege of witnesses is made.
	I have no doubt that the Oireachtas intended the witness under the section 51 procedure to be compellable both in the sense of attending the proceedings and in the sense of answering the questions put and the 1994 Act should be interpreted insofar as possible to fulfil that purpose.   That is not, however, the end of the matter.   Mr. Clarke points out that there is no provision in the Act creating an offence of failure to answer questions, nor is any penalty provided for such an offence.   Mr. Sreenan suggests that Rule 1 grants wide powers which would include powers analogous to those set out in the Petty Sessions (Ireland) Act section 13.   That section deals with the situation where a witness deliberately refuses to answer a relevant question and provides as follows:-

	“13.   Whenever it shall be made to appear to any justice that any person within the jurisdiction of such justice is able to give material evidence for the prosecution in cases of indictable offences, or for the Complainant or Defendant in cases of summary jurisdiction, and will not voluntarily appear for the purpose of being examined as a witness, such justice may proceed as follows:-
	1.	He may issue a summons to such person, requiring him to appear at a time and place mentioned in such summons, to testify what he may know concerning the matter of the information or complaint, and (if the justice shall see fit) to bring with him and produce for examination such accounts, papers, or other documents, as shall be in his possession or power, and as shall be deemed necessary by such justice; but in any case of an indictable crime or offence, whenever the justice shall be satisfied by proof upon oath that it is probable that such person will not attend to give evidence without being compelled so to do, then, (the information or complaint being in writing and on oath,) instead of issuing such summons as aforesaid, he may issue a warrant in the first instance for the arrest of such person;
	2.	And in any case, when any person to whom a summons shall be issued in the first instance shall neglect or refuse to appear at the time and place appointed by such summons, and no just excuse shall be offered for such neglect or refusal, then, (the information or complaint being in writing and on oath,) after proof upon oath that such summons was personally served upon such person, or that such person is keeping out of the way of such service, and that he is able to give material evidence in the case, the justice before whom such person should have appeared may issue a warrant to arrest such person, and to bring him at the time and place appointed for the hearing of the case, to testify and to produce such accounts, papers and documents as may be required as aforesaid;.....
	4.	All witnesses shall be examined upon oath;  and any justice for whom any such witness shall appear for the purpose of being so examined shall have full authority to administer to every such witness the usual oath.
	5.	Whenever any person shall appear as a witness, either in obedience to a summons or by virtue of a warrant (or shall be present, and shall be verbally required by the justice or justices to give evidence,) and he shall refuse to be examined upon oath concerning the matter of the information or complaint, or shall refuse to take such oath, or having taken such oath shall refuse to answer such questions concerning the said matter as shall then be put to him, or shall refuse or neglect to produce any such accounts, papers or documents as aforesaid, (without offering any just excuse for such refusal,) the justice or justices then present may adjourn the proceedings for any period not exceeding eight clear days, and may in the meantime by warrant commit the said witness to gaol, unless he shall sooner consent to be sworn or to testify as aforesaid or to produce such accounts, papers documents as the case may be;  and if such witness, upon being brought up upon such adjourned hearing, shall again refuse to be sworn, or to testify as aforesaid, or to produce such accounts, papers, or documents, as the case may be, the said justices, if they shall see fit, may again adjourn the proceedings, and commit the witness for the like period, and so again from time to time until he shall consent to be sworn or to testify as aforesaid, or to produce such accounts, papers, or documents, as the case may be (provided that no such imprisonment shall in any case of summary jurisdiction exceed one month in the whole);  but nothing herein contained shall be deemed to prevent the justice or justices from sending any such case for trial or otherwise disposing of the same in the meantime, according to any other sufficient evidence which shall have been received by him or them:....”

 	Mr. Sreenan submits that to carry over the terms of section 13 of the Petty Sessions (Ireland) Act 1851 into the 1994 Act would be to interpret the statute in a purposive manner and that this would carry out the intentions of the Oireachtas.
	As I have already said, I have no doubt that the intention of the Oireachtas was that a witness appearing before the nominated judge of the District Court under this statutory scheme should be compelled to answer the questions put to him save in the exceptional circumstances set out in Rule 3.   However, no explicit provision has been made either to create an offence or to provide a penalty in the event of failure to answer.   Mr. Sreenan argues that these lacunae may be overcome through the purposive interpretation of the statute.  This court has previously accepted the principle of purposive interpretation (see for example Quinlivan -v- the Governor of Portlaoise Prison [1998] 2 I.R. 113 and Mullins -v- District Judge William Harnett and Others [1998] 2 I.L.R.M. 304), but the principle that any statute which imposes or may impose penal sanctions must be strictly interpreted is also well established.   This latter principle must always have high priority in the interpretation of any statute.
	Rule 1 of the Second Schedule provides that the judge shall have the like powers for securing the attendance of a witness as the District Court has for the purpose of any other proceedings before that court.   This may be equated with the first Rule set out in section 13 of the Petty Sessions (Ireland) Act 1851.   It is notable however, that in that section separate and distinct provision is made under Rule 5 for the situation where a witness actually present in court refuses to answer a question.   That situation is not covered by the general provision on compelling the attendance of a witness.   Rule 1 of section 13 deals with compelling attendance;   Rule 5 deals with compelling a witness to answer.   It seems to me, therefore, that in the statutory scheme set out in section 51 of the 1994 Act Rule 1 of the Second Schedule cannot of itself be held to import a serious criminal offence and a concomitant penal sanction where no specific provision is made for either such offence or such sanction in the Act itself or in the Schedule.  
	Can, however, Rule 5 of section 13 of the Petty Sessions (Ireland) Act, 1851 itself supply the necessary power in the District Court to compel the Applicant to provide answers to the questions in issue?   At first glance, Rule 5 may appear to apply to any situation where a witness appears before the District Court - “whenever any person shall appear as a witness, either in obedience to a summons or by virtue of a warrant....”.   However, Rule 5, in common with the other Rules contained in section 13, is governed by the opening paragraph of the section - “whenever it shall be made to appear to any justice that any person....is able to give material evidence for the prosecution in cases of indictable offences or for the Complainant or Defendant in cases of summary jurisdiction, and will not voluntarily appear for the purpose of being examined as a witness, such justice may proceed as follows”.   Rule 5 is an integral part of the manner in which the judge of the District Court may proceed;  it does not stand on its own.   Thus the procedures set out in section 13 are those which apply in criminal proceedings in the District Court and not otherwise.   It is accepted by all parties in the instant case that the procedure which took place before the learned President of the District Court involving the Applicant is not the administration of justice;  still less is it a criminal procedure.   It is accepted by all, including the Juge D’Instruction, M. Fievet, that Mr. Salinas de Gortari is not an accused person.
	Despite my acceptance of the probability that the Oireachtas intended that under section 51 of the 1994 Act a witness should be compellable in all senses, it would, in my opinion, be carrying the principle of purposive interpretation too far if this court were to accept the importation of Rule 5 of section 13 of the 1851 Act into the 1994 Act in order to fill what appears to be a lacuna in the Act.   Had the Oireachtas so wished, it would have been comparatively simple to add the words “or for requiring the witness to give evidence” at the appropriate point in Rule 1 of the Second Schedule.   
	The District Court is itself a court of limited jurisdiction established by law under Article 34 of the Constitution.   Its powers are delimited by statute and by statutory rules;  it does not have the inherent powers of this court or of the Supreme Court.   Thus, while the learned President of the District Court was correct in deciding that under the procedures set out in the 1994 Act the Applicant must answer the questions put to him by the court, his powers under the statute do not extend to a finding that the Applicant has committed the offence of criminal contempt, or to the imposition of a penal sanction for such an offence.
	This, clearly, is a highly unsatisfactory situation.  However, this does not mean that this court should legislate to fill gaps left by the legislature.   
	In Howard -v- Commissioners of Public Works [1994] 1 I.R. 101 the Supreme Court held that if the words used in a statute were clear and unambiguous the statute must be enforced, even if such enforcement led to an incongruous or absurd result.   The learned Denham J., having surveyed the historical background of the interpretation of statutes involving the State referred (at page 163) to Halsbury’s Laws of England (Fourth Edition Volume 4) as follows:-

	“Speculation as to Parliament’s intention is not permissible.   If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the legislature must have intended.”

	The learned judge also refers to Cox -v- Hakes [1890] 15 A.C. 506 where Lord Herschell stated at page 528:-

	“It is not easy to exaggerate the magnitude of this change;  nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involves this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.”
	The learned Denham J., concludes:-

	“The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects.   The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature.  If there is a plain intention expressed by the words of the statute then the court should not speculate but rather construe the Act as enacted.”

	While, therefore, it is open to the court to interpret legislation in a purposive fashion, it seems to me that the addition of both an offence and a penal sanction would be to 
“legislate to fill gaps left by the legislature” and would, in addition, offend against the principle of strict interpretation of penal statutes.
	In his written submissions to this court Counsel for the Minister for Justice suggests that one option open to a nominated judge or perhaps to the Minister for Justice in his capacity as the person responsible for implementing section 51 would be to apply to the High Court for a declaration that a particular individual who has appeared before a nominated judge is obliged to answer a particular question or series of questions.   Mr. Sreenan argues that the fact that such a jurisdiction clearly must exist in the High Court answers any claim that there is no procedure under which an individual can be compelled to answer a question posed by a judge appointed pursuant to section 51.   
	It may well be that such a course of action could provide a solution, albeit complex, to the present unsatisfactory situation.   However, this aspect of the matter was not fully argued before me and in those circumstances I feel it would be improper to reach a considered decision on the matter.
	I turn now to the reliefs sought by the Applicant.   Since I have held that the purpose and intention of section 51 of the Criminal Justice Act, 1994 is that the Applicant should in general terms be compelled to answer questions put to him and that he has not a general right to silence, I must refuse the declaration sought under paragraph 1 of the Applicant’s Notice of Motion.   With regard to the second and third declarations sought, Rule 3(1)(a) of the Second Schedule of the 1994 Act would clearly cover the situation where the Applicant’s answer to a particular question would tend to incriminate him in this State.   The matter of a claim of privilege against self-incrimination was succinctly dealt with by Lord Denning MR in Re. Westinghouse Electric Corporation (No 2) [1997] 3 R.E.R. at page 721 as follows:-

	“If a witness claims the protection of the court, on the grounds that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer.
	See R.V. Edmund Garbett, decided by nine judges after two arguments.   Note that a witness is only given this protection if he can satisfy the court that there is reasonable ground for it...it is for the judge to say whether there is reasonable ground or not.   Reasonable ground may appear from the circumstances of the case or from matters put forward by the witness himself.   He should not be compelled to go into detail because that may involve his disclosing the very matter to which he takes objection.   But if it appears to the judge that, by being compelled to answer, a witness may be furnishing evidence against himself, which could be used against him in criminal proceedings or in proceedings for a penalty, then his objection should be upheld.”

	It is clear from this that if the Applicant in the instant case was able to establish some realistic prospect or possibility of his being proceeded against in this jurisdiction as a consequence of answers he might give to the questions posed by the Respondent, he would be entitled to claim (as he would in criminal proceedings in this State) a right not to answer the questions as a consequence of the existence of the Common Law privilege against self-incrimination.   However, it is clear that in order to invoke this protection he would, as a witness under oath, have to satisfy the Respondent that there was reasonable ground for a belief that his answer could be used against him in criminal proceedings.   In point of fact, the Applicant has to date put forward no evidence, either in the District Court or in this court on Affidavit, of grounds for a claim that his potential answers would tend to incriminate him either in this State or in France.   The Respondent has therefore not as yet been enabled to rule on the reasonableness or otherwise of any such grounds.   It would not be proper in Judicial Review proceedings for this court to lay down rules in advance to govern the exercise of the Respondent’s jurisdiction in this matter.   I therefore refuse the reliefs sought as paragraphs 2 and 3 of the Applicant’s Notice of Motion.  It follows that the relief sought in paragraph 4 must also be refused.

lgcarlos