(for judgment announced ex tempore on 4th April 2008)
This was an appeal and cross-appeal from a judgment of the High Court (Gilligan J.) delivered on the 20th March, 2008 on the issue of whether the defendants/appellants are permitted by the law of this jurisdiction to comply with orders made by the High Court of Justice in Northern Ireland and the Court of Appeal of Northern Ireland requiring production for inspection of books of evidence and transcripts relating to criminal trials against the appellants in this jurisdiction in the Special Criminal Court. The Northern Ireland proceeding is a civil action brought by victims and relatives of victims of certain criminal explosions carried out in Omagh, Co. Tyrone almost ten years ago and commonly known as “The Omagh Bombings”. In the Northern Ireland action the respondents are seeking to establish that each of the appellants was actively involved in the Omagh bombings.
The Northern Ireland courts did not make an absolute order for the production of these documents but made the orders subject to there not being any rule of law in this jurisdiction against their production. Furthermore in the case of the fourth-named appellant the order was confined to those parts of the books of evidence and transcript relevant to telephone evidence given at the trials, a matter to which I will be returning.
Proceedings by way of special summons were issued in the High Court on behalf of the respondents on the 22nd May 2007. In the special endorsement of claim on that summons five specific reliefs were sought. These were and are:
The judgment of Gilligan J. which is the subject of the appeal and cross-appeal herein was the judgment of the High Court delivered in those proceedings. For the sake of completion, I should mention that prior to the issue of those proceedings the respondents applied to the Special Criminal Court before which the various criminal proceedings had taken place for a ruling in their favour in relation to compliance with the Northern Ireland orders but that court took the view that it had no jurisdiction to deal with the matter. It is not relevant to consider whether that ruling was correct or not. It is now redundant in the light of the High Court proceedings. Irrespective of whether the ruling as to jurisdiction by the Special Criminal Court was correct or not, I am satisfied that the High Court had full jurisdiction to deal with the matter. That indeed was also the view of the Special Criminal Court based on case law to which I will be referring.
The judgment of Gilligan J. helpfully sets out the relevant criminal record of each of the respondents. For the purposes of this judgment, I will give a shorter summary.
Seamus McKenna, the first-named defendant, was convicted by the Special Criminal Court of unlawful and malicious possession of explosive substances with intent to endanger life or cause serious injury to property contrary to statute and was sentenced to six years imprisonment from the 15th June 2003. That conviction was not appealed and Mr. McKenna is now out of prison.
John Michael McKevitt, the second-named defendant, was convicted of membership within the State of an unlawful organisation styling itself the Irish Republican Army contrary to section 21 of the Offences against the State Act, 1939, as amended, and was sentenced to a term of imprisonment for six years. He was further convicted by the Special Criminal Court of directing the activities of an illegal organisation styling itself the Irish Republican Army in respect of which a suppression order had been made pursuant to section 19 of the said Act of 1939, as amended, and on that offence he was sentenced to a term of twenty years imprisonment as from 29th March, 2001. He appealed that conviction to the Court of Criminal Appeal. The appeal was dismissed but the certificate enabling him to appeal further to the Supreme Court was issued under section 29 of the Courts of Justice Act, 1924. That appeal was heard in February 2008 by this court and the court has reserved judgment.
Liam Campbell, the third-named defendant was convicted by the Special Criminal Court on two counts of membership of an unlawful organisation and sentenced to four years imprisonment on both counts, the sentences to run concurrently. He is now out of prison.
Michael Colm Murphy, the fourth-named defendant, was convicted by the Special Criminal Court of unlawfully and maliciously conspiring with another person not before the court to cause an explosion of a nature likely to endanger life or cause serious injury to property within the State or elsewhere contrary to the relevant statutory provisions. He was sentenced to fourteen years imprisonment but that conviction was overturned by the Court of Criminal Appeal on the 21st January, 2005 and a retrial ordered. The retrial has not yet commenced.
Seamus Daly, the fifth-named defendant, pleaded guilty to a charge of membership within the State of an unlawful organisation and was sentenced to three years and six months imprisonment and is now out of prison.
By order of the High Court made the 20th March, 2008, the court refused to grant a declaration that there was no impediment under Irish law preventing the defendants who are the appellants in this court from producing for inspection the transcripts of evidence relating to the criminal proceedings concerning them before the Special Criminal Court.
The court, however, granted the defendants/appellants leave to produce to the plaintiffs/respondents the books of evidence furnished to them for the purpose of the criminal proceedings before the Special Criminal Court.
The appellants by three separate notices of appeal served and filed on behalf of the appellant, Seamus McKenna, the appellants, John Michael Henry McKevitt and Liam Campbell and the appellants, Michael Colm Murphy and Seamus Daly respectively have appealed against the granting of leave in respect of the books of evidence.
The respondents have cross-appealed in respect of the refusal of the High Court to grant the declaration that there was no impediment under Irish law preventing the appellants from producing for inspection the transcripts of evidence relating to the criminal proceedings.
The learned High Court judge, in his careful reserved judgment, expressed the view that there was a clear distinction to be drawn between the order for production in respect of the transcripts of evidence and the order for production in respect of the books of evidence. In relation to the transcript, the judge came to the conclusion that there was an impediment in law in this jurisdiction to their production for the purposes of the civil proceedings. He, essentially, based this view on the Rules of the Superior Courts, 1986 and an interpretation of those rules by Finnegan J. in The Minister for Justice v Information Commissioner  3 I.R. 43. I am not convinced that this was the correct approach in the context of this particular case and I will be giving my reasons later in this judgment when I come to consider the cross-appeal.
In relation to the issue, the subject of the appeal itself, that is to say, the leave granted in respect of the books of evidence, essentially, this was predicated on the concept that by analogy with the principle that documents discovered in one set of proceedings may not be used in another set of proceedings without the approval of the court, a similarly adapted approach should be taken in relation to documents which had been produced in criminal proceedings and were sought to be used in subsequent civil proceedings, this argument being based on the concept that there was an implied undertaking by an accused not to use the book of evidence for any purpose other than his own criminal trial. As to whether there was such an implied undertaking or not formed the main thrust of the argument in relation to this aspect of the case. In his closing submissions, Mr. Collins, on behalf of the plaintiffs, suggested to the learned High Court judge that he might consider approaching the matter on an assumption (without so deciding) that there was an implied undertaking. There appeared to be no disagreement as to this approach and the suggestion commended itself to the learned High Court judge and was adopted by him.
Making that assumption, the learned High Court judge made the following finding:
I am satisfied that the books of evidence are in the control of the respective defendants and not the de jure control of the Special Criminal Court. For the purpose of these proceedings and for that sole purpose, I am satisfied to assume that the books of evidence were furnished to the defendants pursuant to an implied undertaking that they were not to be used for any collateral purpose. In the particular special circumstances of this case, I am satisfied in the exercise of my discretion to waive the assumed implied undertaking that the books of evidence would not be used for any collateral purpose, so as to enable them to be produced in accordance with the order of Morgan J. of the High Court in Northern Ireland. I am satisfied in the circumstances to come to the conclusion that in discovering and producing the books of evidence and in particular, having regard to the observations of counsel on behalf of the DPP when the application was made initially to the Special Criminal Court and the subsequent letter of consent from the DPP, that each of the defendants will not be committing any contempt of court in discovering and producing the relevant books of evidence.
Although the learned judge then concludes his judgment with the statement that he had come to the conclusion that there was no impediment in law in this jurisdiction to the discovering and producing the books of evidence, this does not seem to me to be strictly accurate because his decision was based on an agreed assumption of an implied undertaking which could only be dispensed with by order of the court.
As this part of his order is the subject matter of the appeals as distinct from the cross-appeal, I will deal with it first.
I should mention at the outset that at the stage of the original application to the Special Criminal Court to permit the handing over of the books of evidence and transcripts, both the Attorney General and the Director of Public Prosecutions were represented and each informed the court that in the words of the ruling of the Special Criminal Court “as far as they were concerned the release by any one defendant or defendants of documents in their possession, power or procurement to the plaintiffs does not cause them any problem.”
As I have already indicated, the learned High Court judge, as a matter of discretion, gave leave for the discovery and production of the books of evidence on the assumption (without so deciding) that the appellants held their respective books of evidence upon an implied undertaking not to use them for the purpose of any other proceeding without the consent of the court. Now that the matter has come on appeal to this court, I do not think that this court can decide the case on an assumption. It must consider what exactly is the legal position in relation to custody and possession of books of evidence. The analogy with civil discovery is not an apt one in my view, largely for the reasons against importing discovery under the rules into criminal proceedings expounded by Keane C.J. in a judgment with which the other four members of this court concurred in H (D) v Groarke  3 I.R. 522 following an earlier three judge decision of this court in DPP v Sweeney  4 I.R. 102. It was, of course, made clear in both of those cases that the now well recognised obligation on the part of the prosecution to disclose all relevant material still applied. The application and enforcement of that principle however was not governed by the rules of court relating to discovery which had quite distinct features. If such an undertaking as was found to exist by the learned High Court judge did exist then I would find his reasoning based to a large extent on the judgment of Clarke J. in Cork Plastics (Manufacturing) v Ineos Compounds U.K. Limited  1 ILRM 174 impeccable. Indeed that case is still relevant to the somewhat different view which I have taken of the law and which I will be expressing later in the judgment. Before I indicate what my view is however, I would like to refer to the reliance which was also placed before Gilligan J. on the House of Lords decision in Taylor v Serious Fraud Office  2 A.C. 177. I do not find it necessary to decide whether that decision represents Irish law or not. It relates to “unused material”. That expression, of course, is ambiguous because it could mean material that was furnished to the accused by the Director of Public Prosecutions with no intention to include it in the book of evidence or it could have a wider meaning by embracing also what was contained in the book of evidence but which were not in fact utilised by the Director of Public Prosecutions at the trial. When I say that I do not find it necessary to make any decision as to whether Taylor represents good law in this jurisdiction or not, I am referring to “unused material” in the narrower sense.
If I am right in the view which I take, the difference will be for the most part academic because like the learned High Court judge, I believe that if the books of evidence are going to be used for some wholly different purpose from their original intended use, the approval of the court should be sought. This will normally be the court of trial but in the case of the Special Criminal Court, an appropriate court would seem to me to be the High Court. Rather than base this requirement on an alleged implied undertaking, I would prefer to base it on the courts’ overall responsibility to ensure the due administration of justice. In considering whether a court should accede to the application or not, the principles to be applied would be no different than the principles which would apply if there was an implied undertaking as originally suggested. Therefore, in that sense, I would uphold the granting of leave by Gilligan J. and I would agree with him that considerable assistance is to be gained from the judgment of Clarke J. in the Cork Plastics case cited above in so far as two different jurisdictions were concerned.
It is neither possible nor indeed desirable to attempt a precise definition of what set of circumstances would be regarded as use of the books of evidence for some other purpose. It would not be the case that the book of evidence was confidential in the sense that an accused could not discuss it with his spouse or members of his family or other advisors. Permission would be required however to use it for wholly different proceedings or indeed for any uncontemplated public or semi-public purpose. These restrictions are necessary in the interest of justice having regard to the ultimate finality of the verdicts of guilt or otherwise in the due process. I, therefore, believe that the learned High Court judge was correct in his exercise of discretion and in the manner in which he exercised it even though I do not agree with the presumption of law on which it was based. This agreement is wholly immaterial in my view because no different principles would have applied in exercising the discretion on the basis which I have suggested.
Everything which I have said so far is subject to my consideration of the special circumstances attaching to the second-named appellant who potentially could face a new trial. This depends on the outcome of a reserved judgment of this court. It is also subject to the special circumstances attaching to the fourth-named appellant who is in fact facing a retrial. As their circumstances are relevant to the matters contained in the cross-appeal as well as the appeal, I will postpone their consideration to later in the judgment.
In the cross-appeal, it is submitted that the learned High Court judge was wrong in his view that the handing over of the transcripts could be prohibited as a matter of law by the Rules of the Superior Courts. In considering the question of whether the transcripts can be handed over or not in the circumstances sought in this case, I am unable to agree that the Rules of the Superior Courts are relevant except possibly to a very minor degree. Rules of court are not part of the substantive law. They are designed to regulate in the interests of justice how litigation should be conducted and they include wide powers of amendment and dispensation. With respect to the learned High Court judge, I cannot agree that the rules could in any way be a determining factor in relation to the important question which arises in this case. It is clear from his judgment however that the main reason why the judge followed the route of O. 86 of the Rules of the Superior Courts was because of the decision of the High Court (Finnegan J.) in Minister for Justice v Information Commissioner  3 I.R. 43. The respondents in their written and oral submissions correctly point out that that decision of Finnegan J. was made in a very special context namely, whether certain transcripts would fall to be produced under the Freedom of Information Act, 1997. Section 46 of that Act provided that the Act was not to apply to court records with two exceptions, the relevant one of which was contained in section 46(1)(a)(I). It was when Finnegan J. had to decide whether particular documents sought came within that exception or not that he gained some assistance from the status and origin of the documents which in turn he was able to discover from O. 86 of the Rules of the Superior Courts. But that is very different from the reliance placed by the learned High Court judge and sought to be placed by the appellants on this appeal on the rules for the purpose of determining the issue in this case.
I find myself in full agreement with the arguments made by the respondents in their written submissions. First of all, they point out, correctly in my view, that O. 86, rules 14 and 17 are essentially dealing with the administrative arrangements for bespeaking transcripts for the benefit of a party to an appeal or an application for leave to appeal. It is, therefore, not directed to the issue of the production of transcripts by other persons for quite different though responsible purposes whether pursuant to an order for production for inspection or otherwise. Interestingly, Finnegan J., despite his restrictive interpretation of O. 86, acknowledged that in an appropriate case a transcript could be the subject of non-party discovery under O. 31, r. 29. The respondents in their submissions make the valid point that if in an appropriate case the production of a transcript by the court may be directed pursuant to that rule despite O. 86, then it would seem to follow that ordinary inter parties discovery which covered a transcript may also be permissible.
In general support of their submissions, the respondents place reliance on the judgment of O’Hanlon J. in Kelly v Ireland  ILRM 318. A passage from that judgment is cited in the written submissions and I think that it is worth quoting in this judgment. It reads as follows:
(Counsel) for the plaintiff submitted that there was no procedure available for the formal proof in later proceedings of decisions taken in the course of a criminal trial before the Special Criminal Court. An official transcript was kept for the purposes of appeals and applications for leave to appeal to the Court of Criminal Appeal, but this was not available for any other purpose. (O. 86, r. 14, Rules of the Superior Courts). An application by counsel for the plaintiff to see the transcript after the court had ruled on the admissibility of the statements had been refused during the course of the trial.
I do not think this objection is well-founded. Rule 25 of the Special Criminal Court Rules, 1975 (S.I. No. 234 of 1975) makes provision for the official record of the proceedings before the Special Criminal Court and while the practice has been (in accordance with the provisions of section 41 of the Offences against the State Act, 1939) for the court to control its own procedures in all respects, I have no doubt that where it is necessary for the purpose of doing justice in a case involving litigation between contesting parties, an extract from the transcript of the proceedings before the court would be made available or its production could be compelled should it become necessary to do so.
I am in complete agreement with the view expressed by O’Hanlon J. In my view, there is no prohibition on the handing over of transcripts for production for inspection purposes with the permission of the High Court, if it is necessary for the purpose of doing justice and provided there is no relevant legal prejudice to the other party as a consequence of doing so. Where the proceeding in which the production is required is in another jurisdiction, the courts of this jurisdiction should accept any finding by that court that the documents are necessary unless there is any reason to believe that for some reason or other the handing over of the documents could lead to a fundamental injustice.
The respondents in both their written and oral submissions also rely on the High Court judgment of Morris P. in Chambers v Times Newspapers Limited  2 I.R. 424 where although the judge refused non-party discovery against the Registrar of the Special Criminal Court in relation to copies of the book of evidence and transcript of a trial in that court, he accepted the principle that they could be made the subject of such an order in an appropriate case.
In my view, this court should accept that a fair trial will be conducted by the High Court of Northern Ireland and I see no reason why this court now should not, as a matter of discretion, permit both the relevant books of evidence and the relevant transcripts to be produced in accordance with the orders made by the High Court and Court of Appeal in Northern Ireland. I take the view, furthermore, that no distinction should be made in either the case where there will definitely be a retrial of the criminal proceeding or the case where potentially there could be a retrial. I cannot see any reason why the production of the documents the contents of which the appellants have full knowledge could prejudice, in any legal sense, a future criminal trial in this jurisdiction. Indeed the trial judge in this jurisdiction would be obliged to ensure that that did not happen.
There is one remaining aspect of the appeal with which I must consider. The relevant ruling of Morgan J. in the High Court in Northern Ireland relating to the fourth-named appellant confined, as I have already mentioned, the production order in his case to those parts of the book of evidence and transcript as related to the so called telephone evidence. With regard to the retrial of the fourth-named appellant, Morgan J. in his ruling said the following:
There remains some controversy in relation to the alleged admissions. It appears, however, that there has been no such controversy about the factual telephone evidence which I am told was given without objection by the fifth-named defendants (i.e. fourth-named appellants on this appeal) trial. In those circumstances, I consider it unlikely that production of the materials in relation to his admissions would have been ordered at this stage if those materials have been the subject of proceedings in this jurisdiction because of the public interest in preventing contamination of the criminal process. I accept that I should exercise caution in respect of the criminal process in the Republic of Ireland. Accordingly, in the case of the fifth-named defendant (i.e. the fourth-named appellant) I confine the order for production to the telephone material in both the transcripts and the book of evidence at this stage.
It is argued on behalf of that appellant that in making that ruling, Morgan J. was in error in allegedly believing that the telephone evidence was not in controversy at the trial and that indeed the Court of Appeal in Northern Ireland was also in error in affirming it. It appears from the judgment of Gilligan J. that this argument was made to him by reference to the judgment of the Court of Criminal Appeal delivered on the 21st January, 2005 by Kearns J. in The People (DPP) v Murphy  2 I.R. 125 wherein at p. 131 it was specifically stated as follows:
As was pointed out by the trial court, the accused’s admission that he borrowed Mr. Morgan’s mobile phone is consistent with Mr. Morgan’s original evidence, although in the teeth of the later retraction. The court decided to accept as truthful Mr. Morgan’s original evidence and rejected Mr. Morgan’s purported retraction of evidence having observed his demeanour and having noted the general tenor of his evidence on both occasions. In so far as the telephone evidence was concerned, the court decided it could accept the veracity and accuracy of the telephone evidence beyond reasonable doubt. The court further held that the accuracy of the records had not been challenged by the defence.
In this connection, the learned High Court judge goes on to refer to a later part of the judgment of the Court of Criminal Appeal in which at pp. 157 and 158 the following passage appears with reference to the evidence of the said Mr. Morgan.
The evidence given by Mr. Morgan including the sequence of that evidence and the circumstances in which Mr. Morgan retracted evidence previously given by him, is fully set out earlier in the course of the judgment. Under this ground the accused argues that the court erred in accepting the earlier evidence of Mr. Morgan which confirmed that the accused had borrowed his mobile phone on Friday the 14th August, 1998, notwithstanding the later evidence given by him, when recalled on the 11th January, 2002 to the effect that he had left his mobile phone in an open glove compartment in his van on the worksite on the 14th August.
It seems clear to this court that the question of the credibility of the evidence given by Mr. Morgan, whether in its entirety or in respect of either of the conflicting accounts given by him was a matter entirely within the competence of the trial court which had the opportunity of hearing and observing Mr. Morgan while he was giving evidence. While the obvious contradiction between the two accounts given by Mr. Morgan is a matter which was, quite properly, canvassed by the defence at the trial, it does not seem to this court that it would be appropriate for it to seek to ‘second guess’ the assessment of the credibility of Mr. Morgan. The grounds advanced by the appellant to suggest that the court should decline to accept the trial court’s assessment of Mr. Morgan’s credibility would involve this court in an impermissible inquiry into the assessment made. It was open to the trial court to decide as it did that the evidence given by Mr. Morgan when he was first before the court was truthful. On that basis the court rejects this ground of appeal.
The learned High Court judge disposed of the argument relating to the telephone evidence in the following passage of his judgment.
It is quite clear that both the High Court in Northern Ireland and the Court of Appeal were aware that the fourth-named defendant was facing a retrial. It is clear from the judgment of Kearns J., in the Court of Criminal Appeal that the Special Criminal Court had come to the conclusion that the accuracy of the actual telephone records had not been challenged by the defence. Clearly Mr. Morgan retracted his earlier evidence and as set out by Kearns J. in the judgment of the Court of Criminal Appeal, it was open to the trial court to decide as it did that the evidence given by Mr. Morgan when he was first before the court was truthful. I do not agree with the submission of Mr. Hogan that the production of the book of evidence in so far as it relates to the telephone evidence in respect of the fourth-named defendant would in some way prejudice his anticipated retrial. This aspect has already been referred to in general terms but quite clearly the fourth-named defendant will be in a position, if there is any doubt in the matter, to produce to the trial judge in Northern Ireland the judgment of the Court of Criminal Appeal and to make any relevant submissions thereon.
I am in complete agreement with the approach adopted by the learned High Court judge but I would go a step further. I am not convinced and, indeed, I think it unlikely that Morgan J. made any error or certainly any error of significance. He speaks of there having been “no such controversy about the factual telephone evidence” and goes on to say that he was actually told that this was given “without objection” in the trial. I think it likely that he was referring here to the uncontroverted records mentioned by Kearns J. But even if I were wrong in that interpretation, I would fully agree with the view expressed by the learned High Court judge. Of course those observations would have to be extended to the books of evidence as well as the transcripts on the view which I have taken.
For these reasons therefore, I am concurring in the judgment of the court already delivered ex tempore by the Chief Justice to the effect that the consent should be given in relation to both the books of evidence and the transcripts, that the appeals be dismissed, that the cross-appeal be allowed and that consequently that part of the order of the High Court which refused the declaration in relation to the transcripts be set aside and that in lieu thereof the declaration sought be granted with the addition of the words “provided there is the consent of the High Court, or the Supreme Court on appeal”.
The background, procedural and otherwise, to this case has been sufficiently summarised in the judgment about to be delivered by Mr. Justice Geoghegan and I gratefully adopt it. I am also in agreement with the principles of law enunciated by Mr. Justice Geoghegan in his judgment. I am not, however, in agreement with the order proposed because I do not think the plaintiffs/respondents have established a sufficient factual case to allow the principles I have referred to, and will discuss further below, to be properly applied in the circumstance of this case.
I wish to refer to the principles enunciated in particular at p.17 of Mr. Justice Geoghegan’s judgment, which emerged to some extent from an analysis of the judgment of O’Hanlon J. in Kelly v Ireland  ILRM 318. Referring to a transcript of proceedings before the Special Criminal Court O’Hanlon J. said, in the latter case:
I have no doubt that where it is necessary for the purpose of doing justice in a case involving litigation between contesting parties, an extract from the transcript of the proceedings before that Court would be made available, or its production could be compelled should it become necessary to do so.
I agree with this. I also agree with the immediately following statement of Geoghegan J:
In my view, there is no prohibition on the handing over of transcripts for production for inspection purposes with the permission of the High Court, if it is necessary for the purpose of doing justice and provided there is no relevant legal prejudice to the other party as a consequence of doing so. Where the proceeding in which the production is required is in another jurisdiction, the Courts of this jurisdiction should accept any finding by that Court that the documents are necessary unless there is any reason to believe that for some reason or other the handing over of the documents could lead to a fundamental injustice.
I also wish specifically to express my agreement with Geoghegan J’s statement, later on p.17:
In my view, this Court should accept that a fair trial will be conducted by the High Court of Northern Ireland ....
Geoghegan J. went on to say:
.... I see no reason why this Court should not, as a matter of discretion, permit both the relevant Books of Evidence and the relevant transcripts to be produced in accordance with the orders made by the High Court and Court of Appeal in Northern Ireland.
The point on which I very respectfully differ from Geoghegan is precisely in relation to the exercise of a discretion. In my view, the plaintiffs/respondents have not put before the Court any information remotely sufficient to permit the proper exercise of discretion. It must be said that the defendants/appellants have not themselves urged this point in any very emphatic or methodical way but of course the entire onus of proof is, at least initially, on their opponents, who alone know what they intend to do with the documents if disclosed. Without this information it is difficult or impossible to show whether or not “relevant legal prejudice” will be caused to the defendants. As it was, the plaintiffs’ case was so minimally and vaguely presented as to make rebuttal, or the demonstration of prejudice, very difficult.
Counsel for the plaintiffs/respondents on the hearing of this appeal adopted what can only be described as a “know nothing” attitude. They knew nothing of the law of Northern Ireland or of the United Kingdom as to the use which might be made of the material sought, or whether it could be produced as evidence and if so what its status might be. They knew nothing of their clients’ intentions in relation to the material in question. They were not merely unable to put any material of this sort before the Court on the hearing of this appeal, but they stated that it was unnecessary to do so. Since the Court gave its ex tempore judgment on the 4th of April 2008, the civil proceedings in Northern Ireland have commenced and have proceeded for a very considerable time: it would not be proper to make use in this judgment of any information which one (like any newspaper reader) might have gleaned, after the hearing of this appeal, as to the use actually made of the relevant material. But it is evident that any consideration as to its evidential status in the Northern Ireland proceedings and the use intended, if possible, to be made of it, was clearly not discussed with those appearing for the plaintiffs/respondents in this jurisdiction and did not form part of their instructions. But since the hearing of the appeal took place within days of the commencement of the proceedings it is evident that proofs must have been advised and some view taken of the planned or possible use of the material in question here.
In the absence of evidence of this sort I do not find it possible to be satisfied that there is “no relevant legal prejudice” to the other party, in the words of Geoghegan J. I consider that this Court, which has an intimate knowledge of material of the sort in issue here, should have been informed what was proposed to be done with it.
The “Book of Evidence” is a compendium of the documents required by our law to be served on an accused person pursuant to the Criminal Procedure Act, 1967. The bulk of this compendium is usually the statements of proposed evidence of witnesses and, sometimes, exhibited documents. Those who deal constantly with such documents in this jurisdiction have learnt not to presume on the accuracy, credibility or admissibility of what they contain. They are entirely prosecution documents with no input from the accused at all except insofar as an accused person may have made statements which the prosecution decides to use. Such statements, when alleged, are often hotly disputed. Plainly inadmissible material is not infrequently found in such statements of proposed evidence. I would not, without the consent of the defendants/appellants, facilitate or compel their production without knowing the purpose for which they were required and the use to which they were proposed to be put. Depending on the circumstances of the individual case one could imagine gross prejudice occurring.
The transcript of the evidence of witnesses for the prosecution is, of course, quite properly likely to contain material prejudicial to the defendants. And that fact alone, obviously, cannot be a reason for its non-production. The main evidence in this case, that of an FBI undercover informer is of a most unusual kind. I would require to know the use to which it was intended to be put before approaching the exercise of discretion as to whether to direct or permit its production for that purpose.
This is a most unusual case which, in some ways, proceeds in an air of unreality. The declarations sought by the plaintiffs are permissive: they are set out at p.3 of the judgment of Mr. Justice Geoghegan. But once the defendants’ ability to comply with the order of the Northern Ireland Court, in terms of the law of this jurisdiction, is established, they will be compelled to do so. To that extent the permissive nature of the relief sought masks the reality of the defendants’ situation. The material which is sought to be produced is, without exception, the production of persons and interests hostile to the defendants and is in the possession of the State authorities in this jurisdiction. It appears that no application for its production by those authorities has been made. The Court does not know, and has not been informed, why this is so, or whether any embarrassment or difficulty is perceived by the authorities in themselves producing this material. In that state of information, I cannot be satisfied that there is necessity to make orders against these defendants of the sort in question here: it would seem a more natural and a more reasonable procedure to apply for the production of the documents to the State authorities who made them and introduced them into the criminal proceedings. On the most basic level, the authorities, who hold the originals of the material in the Book of Evidence and at whose suit the transcript of the trial was produced, are in a position to prove the documents: the defendants, who are merely served with copies, are clearly not in a position to do so. Secondly, the documents were served on the defendants in their capacity as defendants in a criminal proceeding and are entirely the product of their prosecutors or persons acting in concert with them, for and at the expense of the State authorities. The defendants have no responsibility for the accuracy of, or the probity of the means of obtaining, the material in the documents sought and in some instances challenge its accuracy or veracity. In those circumstances it seems to me necessary to show why (if it be the case) this material was not sought from those who produced it and who can prove or vouch it.
I consider that this novel and unusual application should have been urged on the basis of a much more complete showing of information, which I consider as a matter of great probability was in fact available to the plaintiffs. I would have taken this view whether the action in aid of which production is sought was to be heard in this jurisdiction or in any other.
I would therefore have allowed the appeals and dismissed the cross-appeal but in each case simply on the basis that there was insufficient information before the Court to enable it to decide whether to grant or withhold permission.
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