App No: 146/2011

IpsofactoJ.com: International Cases [2011] Part 12 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

Aviva Insurance

(Europe) Public Ltd Co

- vs -

Seamus McLaughlin

DENHAM CJ

HARDIMAN J

O'DONNELL J

15 NOVEMBER 2011


Judgment

Denham CJ

  1. The Commissioner of An Garda Síochána, the notice party/appellant, referred to in this judgment as "the Commissioner", claims privilege in respect of certain items/documents on this appeal.

  2. Seamus McLaughlin, the plaintiff/respondent, referred to as “the plaintiff”, has brought proceedings seeking a declaration, inter alia, that Aviva Insurance (Europe) Public Limited Company, the defendant, is liable to indemnify the plaintiff in respect of loss and damage suffered by him arising out of a fire which occurred on the 1st February, 2009, on the premises known as "The Waterfront", situate at James Street, Moville, Co. Donegal.

  3. By notification dated the 22nd January, 2010, Aviva Insurance (Europe) Public Limited Company, the defendant/respondent, referred to as “the defendant”, refused to indemnify the plaintiff in respect of the insurance policy, on the grounds, amongst others, that it believed that the plaintiff was responsible for setting fire to the Waterfront on the 1st February, 2009. In the defence lodged on the 4th May, 2010, to the plaintiff’s claim, the defendant explained its refusal to indemnify the plaintiff, on the basis, inter alia, that the claim made by the plaintiff was fraudulent and/or that fraudulent means and devices were used by the plaintiff and/or his brother, Kevin McLaughlin, in an attempt to obtain a benefit under the policy. The defendant alleges that the plaintiff entered the premises with his brother, Kevin McLaughlin, at approximately 03.07a.m., on the morning of the 1st February, 2009, and shortly thereafter, one or both of them deliberately started the fire that damaged the premises.

  4. This appeal arises in relation to a motion. On the 14th February, 2011, the Commissioner brought a notice of motion, dated the 13th September, 2010, before the High Court seeking an order that certain items were privileged and need not be discovered. The motion sought an order:-

    [....]

    2.

    (1)

    Permitting An Garda Síochána to refuse consent to discovery of

    (a)

    The second DVR recorder recovered from the premises known as the Waterfront on the 13th of February 2009.

    (b)

    The forensic reports prepared by

    (i)

    Data Clinic Limited in respect of the recovered CCTV recorders and footage

    (ii)

    The forensic report prepared by Critical Processes in respect of samples taken by Dr. Ormsby in February 2009 from the site of the fire the subject matter of these proceedings;

    on the basis that disclosure of same is privileged pursuant to Public Interest/InvestigativePrivilege.

  5. On the 14th February, 2011, the High Court (Commercial) (Kelly J.) ordered that the claim of public interest/investigative privilege sought by the Commissioner be disallowed. He also refused an application for a stay and ordered that the discovery originally directed on the 12th July, 2010, be made within twenty one days.

  6. There is no formal record of the ex tempore judgment of the High Court. However, counsel's note of the judgment states:-

    This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and two reports (being (a) a report prepared by the Data Clinic and (b) a forensic report prepared by Critical Processes). It is said that the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by the Gardaí, they were given to the Gardaí. We are therefore in the curious position in circumstances where the documents over which privilege [is] claimed were not generated by the police.

    Two authorities have been cited in support of the proposition Breathnach v Ireland No.3 and DPP v Corbett. In my view Breathnach on its facts has little or nothing to do with this case. None of these deals with the situation where an investigation is [on]going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.

    The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the possession of the police and they are going to carry out the process known as "cannibalisation". The Plaintiff wants to observe that process through a representative. There is no authority entitling a Court to impose this upon An Garda Síochána. As to the fruits of the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP has seen the recording. I have no idea how long the DPP will take to do this.

    This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make in this case is to make no Order as to costs as the Application has not been successful.

  7. The Commissioner has appealed that decision to this Court. By notice of appeal it was stated that the Commissioner would rely on the following grounds:-

    (i)

    The learned Trial Judge erred in fact and in law in determining that the privilege of the nature asserted by the Commissioner could not and did not apply to the documents and items over which such privilege was asserted.

    (ii)

    The learned Trial Judge erred in fact and in law in determining that as the documents and items at issue were not generated by the Commissioner no privilege of the type contended for by the Commissioner could be asserted in respect of same.

    (iii)

    The learned Trial Judge erred in fact and in law in determining the public interest/investigative privilege did not apply to the subject documents and items in light of the fact that the subject documents or items were procured or identified and received from one of the parties to the civil proceedings.

    (iv)

    The learned Trial Judge erred in law and in fact in failing to properly or adequately take into account the proper course of the criminal investigation identified by the Commissioner and by failing to properly or adequately consider the concern expressed by the Commissioner that disclosure of the forensic reports specified at paragraph A of the notice of motion dated the 13th of September 2010 could potentially disrupt the due and proper investigation of the crime suspected.

    (v)

    The learned Trial judge erred in fact and in law by directing disclosure of the material (report or data) (obtained as a result of the process of cannibalisation of the DVR identified at paragraph A of the Notice of Motion dated the 13th of September 2010) after a period of 14 days had elapsed after cannibalisation of the said DVR on the grounds that same fails to respect the investigative/public interest privilege contended for by the Commissioner.

    (vi)

    The learned Trial Judge erred in fact and in law in refusing to award the Commissioner the costs of the Application.

    Documents and items

  8. The documents and items the subject of the appeal were described in the notice of motion dated the 13th September, 2010, which have been set out earlier in this judgment. However, I understand that both DVRs are in issue, and not just the second DVR recorder as described in the notice of motion.

  9. The Commissioner sought an order that certain items were privileged and that discovery should be refused on the basis that disclosure of the documents and items is privileged pursuant to public interest/investigative privilege.

    Submissions

  10. Written submissions were filed on behalf of the Commissioner and the plaintiff. The Commissioner submitted that there are two competing aspects of the public interest being:-

    1. the public interest in the proper administration of justice; and

    2. the public interest in the detection, investigation and prosecution of suspected criminal offences.

    It was submitted that the privilege claimed is not permanent, but to last only until the Director of Public Prosecutions decides that there will be no prosecution or a prosecution is directed, at which time the items will be in the Book of Evidence. The plaintiff submitted that the Commissioner, a non-party to these proceedings, cannot invoke privilege in circumstances where the defendant, its servants and agents, have been in possession of the privileged material for a period of up to a year and a half from the commencement of the criminal investigation and where it has already used that documentation to advance its defence of the proceedings.

    Law

  11. There is a public interest which arises in some cases whereby certain matters may be privileged and may not be produced in evidence. The decision as to whether evidence is privileged or not is a matter for the courts: Murphy v Dublin Corporation [1972] 1 I.R. 215. There may be different aspects of the public interest. Walsh J. noted in Murphy v Dublin Corporation at p. 233:-

    There may be occasions when the different aspects of the public interest ‘pull in contrary directions’ – to use the words of Lord Morris of Borth-y-Gest in Conway v Rimmer [1968] A.C. 910, 955. If the conflict arises during the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail. This does not mean that the court will always decide that the interest of the litigant shall prevail.

  12. There is a public interest in criminal investigations carried out by An Garda Síochána. Lord Reid stated in Conway v Rimmer [1968] A.C. 910 at p. 953 – 954:-

    The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy.

    I agree with the analysis that in general documents material to an ongoing criminal investigation by An Garda Síochána should not be required to be disclosed in civil proceedings. However, after the verdict in the criminal trial or after it has been decided not to prosecute, there is no need for the privilege.

  13. It is an important part of an analysis of this type of privilege that it exists only for a limited time. Thus, it would apply only until the criminal trial is concluded or until the Director of Public Prosecutions has decided not to prosecute. It is not unusual that a civil trial awaits the conclusion of a criminal trial.

  14. The special position of the Director of Public Prosecutions was referred to by Keane J. in Breathnach v Ireland (No.3) [1993] 2 I.R. 458 at 471:-

    As has also been frequently pointed out, the privilege is that of the client and may only be waived by him. The position of the Director of Public Prosecutions is, of course, somewhat different: he does not stand in the relationship of "client" to any other lawyer. He is in a sense both lawyer and client, since he formulates the legal opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties to the subsequent litigation. However, be that as it may, the public policy which protects from discovery communications in the first category undoubtedly applies equally to communications between the Director of Public Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated.

    In this instance, the privilege sought is different and is only for a limited time i.e. until the case is prosecuted or a decision is made not to prosecute in the criminal courts.

    Decision

  15. The items of which the Commissioner seeks to claim privilege are required for the purpose of civil proceedings between the plaintiff and the defendant and also for a criminal investigation. The Commissioner claims privilege pending the decision not to prosecute or pending the service of a Book of Evidence, which would contain the items.

  16. There is a public interest privilege in documents which are a material part of a criminal investigation. There is a public interest privilege in documents created, sought, or obtained for, and relevant to, a criminal prosecution by a prosecutor.

  17. The fact that the documents and/or items were not originally created by a prosecutor does not exclude them from privilege as there is a public interest privilege in documents and/or items which are a material part of a criminal investigation.

  18. The onus to establish that the privilege lies upon the person seeking the privilege. In this case, the Commissioner carries the onus.

  19. I am satisfied that it is established that the documents and items sought, being the two DVR recorders and the two forensic reports, are privileged. This privilege exists until the decision is made not to prosecute or until the decision is made to prosecute, when the matters will be disclosed in the Book of Evidence.

  20. The fact that these documents and/or items were not originally created by An Garda Síochána does not prevent them attracting privilege. They are now material documents and items in a criminal investigation by An Garda Síochána and they attract privilege on the basis of public interest and investigative privilege.

  21. The fact that the documents arose in civil proceedings does not mean that the privilege does not apply to them. They are now a material part of a criminal investigation and, as a consequence, privilege attaches to them.

  22. On occasions, when considering a privileged document, the court may have to balance interests. However, the issue of balancing interests does not arise in this case.

  23. Thus I would order that the items are privileged and may not be discovered until either the decision has been made to prosecute, when disclosure will be made in the Book of Evidence, or a decision is made not to prosecute, when the privilege ceases.

  24. This case is decided upon its facts and circumstances. The issues raised are important and may arise for further consideration in another case, where there would be more elaborate argument and scrutiny than was available in both the High Court and in this Court in this case.

  25. An additional issue arises in that the plaintiff seeks that his experts see the items before they are altered, and attend at the process by which they are "cannibalised", and after. This is not an order that I would make. However, it does raise a degree of alarm that evidence may be destroyed. I draw attention to the possibility of difficulties arising if the experts of the plaintiff are excluded. However, that is a matter for the prosecutor.

  26. In conclusion, for the reasons given, I would allow the appeal and order that there is a public interest privilege in the items and would therefore order that there be no discovery until the privilege has ceased to exist either by way of a decision not to prosecute, or by a decision to prosecute when the matters will be disclosed in the criminal proceedings.

    Justice Hardiman

  27. This appeal raises issues in relation to the law and practice of Discovery. It is the appeal of the Notice Party, the Commissioner of An Garda Síochána from the judgment and order of the High Court (Kelly J.) of the 14th February, 2011.

  28. It must be said that this is a most unusual case. As far as my researches go it is unprecedented. Issues relating to Discovery have been endlessly litigated in recent years. A glance at the Table of Cases in the leading Irish text, Discovery and Disclosure by Abrahamson Dwyer and Fitzpatrick (Roundhall, Dublin, 2007) will amply illustrated this. But despite the thorough (many would say excessive) exploration of the area, this case turns up an entirely new point which may be summarised as follows:

    Can public interest privilege be used to withhold from a citizen discovery of film footage and equipment which is the citizen’s own property, which he voluntarily gave to investigators on the basis that it is now in the possession of the gardaí and that there may or may not be a prosecution to which it is relevant at some future time?

  29. The learned trial judge (Kelly J.) observed that:

    The curious thing is that they [the items of which discovery is sought] were not generated by the gardaí, they were given to the gardaí. We are therefore in the curious position in circumstances where the documents over which privilege is claimed were not generated by the police .... None of these [the cases cited] deal with a situation where an investigation is ongoing and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.

    Background facts

  30. The Plaintiff is a publican and nightclub owner who formerly carried on business in premises known as the Waterfront Bar and Restaurant in James Street, Moville, Co. Donegal. On the 1st February, 2009 the plaintiff’s premises and their contents were completely destroyed by fire.

  31. On the following day, 2nd February, 2009, the plaintiff made a claim on foot of an insurance policy which he had taken out with the defendants in respect of the said premises and their contents. On the 22nd January, 2010, almost a year later, the defendant, Aviva, informed the plaintiff that it was refusing to indemnify him on the grounds that he was guilty of fraud and specifically that he had himself been physically involved in the starting of the fire which had destroyed the premises.

  32. It is undisputed that in the days after the fire the defendant’s investigators attended on multiple occasions at the plaintiff’s premises and recovered and were given various contents and equipment including the CCTV surveillance system. This was the property of the plaintiff and was given by him to the investigators at their request. They later gave it to the gardaí. No-one disputes the relevance of the material nor that it is the plaintiff’s property.

  33. The plaintiff commenced an action on the policy of insurance by plenary summons on the 24th January, 2010. He seeks a declaration that he is entitled to be indemnified in respect of the fire. His Statement of Claim was delivered on the 11th March, 2010. On the 22nd March 2010 the defendant had the proceedings entered into the High Court commercial list.

  34. Later in 2010, the pleadings having closed, the plaintiff sought discovery from the defendants of various categories of document and issued a Notice of Motion in this regard which came before Mr. Justice Kelly in the commercial list. This occurred on the 12th July, 2010. On that date Mr. Justice Kelly directed that the defendant make discovery of:

    1. All CCTV video footage and the CCTV video monitoring surveillance system operating at the plaintiff’s premises at the time of the fire on the night of the fire including any compensate or edited tapes or DVR in respect of the fire;

    2. Documents establishing and/or showing the results of any forensic examination carried out in the immediate aftermath of the fire by or on behalf of the defendants its servants or agents in relation to the plaintiff’s premises and the fire which broke out therein.

  35. These categories of discovery were ordered subject to a rider permitting An Garda Síochána to refuse consent to the discovery of:

    (a)

    The second DVR recorder removed from the premises known as the “Waterfront” on the 13th day of February, 2009,

    (b)

    The forensic reports prepared by the Data Clinic Ltd. in respect of the recovered CCTV recorders and footage and the forensic report prepared by Critical Processes in respect of samples taken by Dr. Ormsby in February, 2009, at the site of the fire the subject matter of the proceedings, on the basis that the disclosure of same is privileged pursuant to public interest/investigative privilege.

  36. The Commissioner asserted a claim of public interest privilege in respect of the documents in issue, which claim was disallowed by Mr. Justice Kelly on the 14th February, 2011. This order stated that:

    It is ordered that the claim (public interest/investigative privilege) sought to be asserted by the Commissioner of the Garda Síochána in the said Notice of Motion dated 13th September, 2010 .... be disallowed.

    The appeal

  37. In his Notice of Appeal, which is undated in the form in which it is before the Court, the Commissioner relies on the following grounds:

    (1)

    The learned trial judge erred in fact and in law in determining that the privilege of the nature asserted by the appellant could not and did not apply to the documents and items over which the privilege was asserted.

    (2)

    The learned trial judge erred in fact and in law in determining that as the documents and items in issue were not generated by the appellant no privilege of the type contended for by the appellant could be asserted in respect of same.

    (3)

    The learned trial judge erred in fact and in law in determining the public interest/investigative privilege did not apply to the subject documents and items in light of the fact that the subject documents and items were procured or identifiable and received from one of the parties to the civil proceedings.

    (4)

    The learned trial judge erred in fact and in law in failing to properly or adequately take into account the proper course of the criminal investigation identified by the appellant and by failing to properly or adequately consider the concern express by the appellant that disclosure of the forensic reports specified at paragraph (a) of the Notice of Motion .... could potentially disrupt the due and proper investigation of the crime suspected.

    (5)

    The learned trial judge erred in law and in fact by directing disclosure of the material (reporter data) (obtained as a result of the process of cannibalisation of the DVR identified at paragraph (a) of the Notice of Motion .... after a period of fourteen days had elapsed after cannibalisation of the said DVR on the ground that same fails to respect the investigative / public interest privilege contended for by the Notice Party.

    (6)

    The learned trial judge erred in fact and in law in refusing to award the Notice Party its costs of the application.

  38. However, in the evidence on affidavit, a somewhat more nuanced position applies. At paragraph 9 of his affidavit sworn the 9th September, 2010, Inspector Kelly on behalf of the Commissioner swore that:

    .... both Seamus and Kevin McLaughlin attended and viewed the available footage at Buncranna Garda Station on the afternoon of the 30th August, 2010.

  39. He goes on to say that “An Garda Síochána are prepared to provide copy of such CCTV footage as is available” but not “all the CCTV Monitoring Surveillance system as same is required for the ongoing investigation”.

  40. It is also clear from the affidavits in the case that the privilege claimed is described as public interest/executive privilege and, in the Notice of Appeal as “investigative” privilege. In my view, nothing turns on the distinctions made.

  41. The evidence on affidavit establishes that, while the fire has been investigated by the Garda Síochána no charges have been directed by the Director of Public Prosecutions and therefore none have been preferred against the plaintiff. This is the position now, as the third anniversary of the fire approaches.

    The High Court Judgment

  42. This matter came before the High Court at its normal busy Monday morning motion list. The learned High Court Judge recorded that the matter had been in his list on a number of occasions so that he could be informed of what the decision in relation to a prosecution the DPP had reached but that he was told that no decision had been reached and neither could any estimate of time be given as to when a decision on a prosecution might be made. In the circumstances the only note of the High Court ex tempore decision is an agreed note of counsel. This is as follows:

    This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and two reports (being a) a report prepared by the Data Clinic and b) a forensic report prepared by Critical Processes. It is said that the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by the Gardai, they were given to the Gardai. We are therefore in the curious position in circumstances where the documents over which privilege claimed were not generated by the police.

    Two authorities have been cited in support of the proposition (Breathnach v Ireland No. 3) and DPP v Corbett. In my view Breathnach on its facts has little or nothing to do with the case. None of these deal with the situation where an investigation is going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.

    The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the possession of the police and they are going to carry out the process known as “cannibalisation”. The Plaintiff wants to observe that process through a representative. There is no authority entitling a Court to impose this upon An Garda Siochana. As to the fruits of the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP has seen the recording. I have no idea how long the DPP will take to do this.

    This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make in this case is to make no Order as to costs as the Application has not been successful”.

  43. I agree with the learned trial judge that the case of Breathnach v Ireland No. 3 [1993] 2 IR 458 appears to be without relevance to the present proceedings. Breathnach was a case arising from the Sallins Train robbery and featuring allegations of assault and battery, false imprisonment, intimidation, malicious prosecution and breach of constitutional rights all centering on the manner in which confessions were allegedly obtained by the State defendants in relation to the once famous Sallins mail train robbery in 1974. Four defendants were sentenced to lengthy prison sentences for this offence but all had been released, on appeal or otherwise by the time the discovery action in Mr. Breathnach’s civil proceedings came on. The material which was controversial in Breathnach was:

    All records relating to communications between [various members of the gardaí involved in obtaining the alleged confessions], and any other members of An Garda Siochana in the months of March and April 1976, which are, or have been, in the possession or power of the Director of Public Prosecutions.

  44. This is material of a totally different sort to what is in question here. What is in question here is the product of a surveillance system, and the system itself, which was actually the property of the plaintiff. The material was in that sense generated by the plaintiff, and owned by him, as opposed to the position in Breathnach, where the material was internal police material generated by the gardaí. But some of the principles laid down in Breathnach are of relevance.

  45. The other case which was cited to the learned trial judge, apparently in support of the privilege, was Corbett v Director of Public Prosecutions [1999] 2 IR 179. This was a decision of the High Court (O’Sullivan J.) in a somewhat similar case. There, the applicant was charged with assault. The summons against him had been adjourned but prior to the adjourned hearing he received a letter from a Garda Sergeant informing him that the case would be further adjourned. Meanwhile a Garda Clerical Officer contacted his solicitor and informed her that the prosecution would be seeking an adjournment on the basis of a pending Supreme Court judgment. The applicant sought judicial review against the respondent on the grounds that he had usurped the Court’s function by denying the applicant access to the Courts. He was granted leave and later sought discovery of documents in respect of the appointment of the District Court Clerk and also in respect of the adjournment application by the gardaí. The gardaí claimed privilege over certain documents. O’Sullivan J. upheld claims of privilege over certain documents and directed that others be disclosed. He held, following the decision of Keane J. in Breathnach, above, that where documents were prima facie privileged “then I consider the Court should proceed to inspect the documents to ascertain whether in the particular circumstances they should, notwithstanding the prima facie claim, be disclosed to the applicant” (page 189). He held following the decision of Finlay C.J. in Ambiorix Limited v Minister for the Environment [1992] 1 IR 277, that:

    There cannot .... be a generally applicable class or category of documents exempted from production by reason of the rank in the public service of the person creating them, or the position of the individual or body intended to use them.

  46. He therefore proceeded to examine the documents individually.

  47. Both Ambiorix and the earlier case of Murphy v Dublin Corporation [1972] 1 IR 215 emphasise the possibility of conflict in the interests to be regarded in Discovery applications, Walsh J. saying in the latter case at p.233:

    There may be occasions where the different aspects of the public interest ‘pull in contrary directions’ – to use the words of Lord Morris of Borth-Y-Gest in Conway v Rimmer [1968] AC 910. If the conflict arises during the exercise of the judicial power then, in my view it is the judicial power which will decide which public interest shall prevail. This does not mean that the Court will always decide that the interests of the litigant shall prevail.

  48. In Conway, a major development in the law of England and Wales took place. The earlier line of authority had been epitomised in Duncan v Cammell Laird and Co [1941] 1 AER 437. There, the plaintiffs sought damages arising out of an accident in a submarine built by the defendants under a government contract. Discovery was objected to on the ground of Crown privilege and the House of Lords upheld that objection and refused to adjudicate on the veracity of the assertions grounding the plea. The privilege prevailed automatically, without examination.

  49. Conway changed the position considerably and held that the Courts:

    .... are entitled to exercise a power and duty to hold a balance between the public interest as expressed by the Minister, to withhold certain documents or other evidence and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject the Minister’s view: full weight should be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail; but experience has shown that reasons given for withholding whole classes of documents are not often of that character.

    .... There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask .... whether the withholding of a document because it belongs to a particular class is really necessary for the proper functioning of the public service.

  50. Lord Reid went on to make his well known statement about Police documents holding that “.... it is essential that there should no be disclosure of anything which might give any useful information to those who organise criminal activities”. And he continues in the passage cited by the Chief Justice in the present case.

  51. Conway was a case of discovery sought, by a probationary policeman who had been refused a permanent appointment, of various documents in the nature of assessments of his performance as a probationer. The Court below upheld a claim of Crown privilege but the House of Lords reversed the decision.

  52. It has not been easy to find cases directly analogous to the present or even cases where documents generated by the police were required for civil proceedings. That this latter circumstance does not arise very often is presumably due to the custom of providing a “garda abstract” in motor claim cases. I have found only one decision on this area generally and it is a decision of the former President of the Circuit Court, Judge Sheridan, Walsh v Peters and An Garda Síochána, a judgment given on the South Eastern Circuit in 1992 and reported in [1993] ILTSJ 1 82. There the learned Judge held that, following Murphy v Dublin Corporation, cited above, a claim that communications between one garda and another were inadmissible as a class is not sustainable. He followed the dictum of Keane J. in that case:

    .... once the Court is satisfied that the document is relevant, the burden of satisfying the Court that a particular document ought not to be produced lies on the party, or the person, who makes such a claim. It follows therefore that before any claim can be made in support of the non-production of the document by the Executive, a claim must be made in relation to the particular document and the ground of the claim must be stated.

  53. Judge Sheridan’s judgment demonstrates that the case of Attorney General v Simpson [1959] IR 105, which in many ways is the Irish equivalent of Duncan v Cammell Laird, is no longer good law.

    Onus

  54. There is no doubt that the onus of proof on this appeal rests on the Commissioner. In the circumstances of Breathnach (which were much stronger from the garda point of view), Keane J. said in the report already cited:

    However, whatever be the position in relation to documents of a specific nature to which I have already referred, such as those involving the disclosure of garda sources or the security of the State, it would seem that, where the claim is couched in more general terms of public interest, as here, the burden of satisfying the Court that it should not proceed to inspection should lie upon the person seeking to withhold the document.

  55. In the present case however the Commissioner is not seeking to withhold a document from inspection: he is objecting even to discovery being made of it.

    The nature of the Commissioner’s case

  56. It appears to me that the Commissioner’s case is substantially based on the general proposition that material should not be disclosed to the plaintiff “until such time as either the DPP has directed that no prosecution should be brought or the DPP has directed that a prosecution should be brought and has directed the service of a Book of Evidence at which point in time the said reports will be contained in the same Book of Evidence and accompanying documents”. (Emphasis added)

  57. It appears to me therefore that the Commissioner’s substantial objection to the making of discovery is one of priority and timing. He asserts, as a matter of principle, that given that there has been a garda inquiry (it is not ongoing but was terminated by the transmission of a file to the Director of Public Prosecutions on the 18th May, 2010) and given that there may be or may not be a prosecution, the gardaí are entitled to withhold the information until the prosecution is commenced, and it will be disclosed in the course of the prosecution.

  58. It will be noted that the Commissioner does not make any objection on the grounds of irrelevance or non-necessity to disclose. It appears to be agreed between the parties that, but for the possible criminal proceedings, the documents in question would fall to be disclosed in the ordinary way as non-party discovery in the civil proceedings.

    Priority

  59. There is in my opinion no rule of law whereby a civil case which is ready to proceed, or to proceed to the next procedural stage must yield in priority even to a criminal case actually in being. Much less, therefore, is there a rule to the effect that a civil action, or a stage of a civil action, must yield to a purely hypothetical criminal case which may, or may not, ever actually come into being. Our jurisprudence on this point seems to be quite clear since the case of Dillon v Dunnes Stores [1966] IR 397. There, the plaintiff had been employed by the defendant as a shop assistant. She was charged (with others) in the District Court with conspiracy to steal and with stealing certain goods from the defendant Company and was returned for trial. On being charged she immediately commenced civil proceedings against the defendant. The jury in the criminal court was discharged and the case adjourned.

  60. Meanwhile the plaintiff proceeded in the ordinary way with her civil proceedings and, it should be noted, obtained both discovery and interrogatories without objection (see p.401 of the report). This Court held on the defendant’s motion to stay the civil proceedings:

    .... It is not easy to see why the trial of the alleged civil wrong should not take place without reference to the criminal proceedings .... if there be a tactical advantage in getting one case ahead of the other, that is not a matter in which the Court should assist one party rather than another; rather should it let the cases find their date of trial as they become ripe for hearing. This is the position in the plaintiff’s action, and no authority has been referred to which would warrant the Court in seeking to postpone it until after the final determination of the criminal proceedings. As the plaintiff could not have had an order to postpone the criminal proceedings until the determination of her civil action, equally the hearing of the civil action cannot be required to await the conclusion of the criminal proceedings.

  61. That application related to an application to stay the civil proceedings pending the criminal but I do not see why its logic should not equally apply to an application to defer a step in the civil proceedings. If the Commissioner’s application succeeds, it will have the effect of staying the civil proceedings.

    Decision

  62. I would dismiss the appeal and uphold the judgment of the learned trial judge. While it is terse in its expression, understandably, because it was given extempore on a busy Monday morning, I am quite satisfied that it is correct in principle and particularly in its finding that the Commissioner has failed to establish any element of privilege in circumstances where he has got the documents voluntarily from one party to the proceedings.

  63. This distinguishes the case radically from cases such as Breathnach which are authoritative but which relate to documents generated by the gardaí themselves in the course of an investigation. Garda investigations very often require persons, often the victims of crimes, to give voluntarily and informally to the gardaí various items of possible evidential use, such indeed as CCTV footage. A person parts with such material voluntarily for the laudable purpose of assisting the investigation of crime, but I do not believe that, in doing so, he accepts that he will face its indefinite detention, so that it is not available to him even to prosecute or defend a civil claim. If the Commissioner’s contention in the present case were upheld it would be necessary for such persons to take legal advice about a process which is currently operated quite voluntarily. I do not believe that the existing law confers privilege from disclosure of such materials even disclosure to the person whose property they are and I would therefore uphold the learned trial judge’s decision.

  64. If the law were to be extended, and I am satisfied it would be an extension, in the direction desired by the Commissioner, it would be so significant a development that I do not think it should be undertaken by a court composed as this one is.

  65. Moreover, in the circumstances of this case, where the plaintiff who applies for discovery has already seen the film footage, and where the gardaí in any event do not object to producing the footage, the objection in truth relates only to such footage as may be extracted from two DVR boxes, containing three discs each, and one of which, (exhibit EX1) is not in proper functioning order. Accordingly, the objection is put along the lines that:

    I say and believe that An Garda Síochána for the purpose of the investigation ought to be in the position of viewing any recovered footage prior to the subject of the investigation, and for this reason, and to ensure the integrity of the investigative process, An Garda Síochána object to disclosure of EX1.

    (Affidavit of Inspector Kelly on 9 September 2010)

  66. This is an objection of a very novel sort, and for which I think there is no authority. It must be remembered that the objection is made not withstanding that the DVR box in question is the property of the plaintiff. It was stated in the course of argument on the hearing of the appeal that the process of recovering footage might be destructive of the box itself and its product, and this seems to me to make it necessary that the plaintiff be afforded the opportunity of attending or being represented at a possibly destructive process. I can see no basis on which he can be kept out of a process sought to be carried out on his own property: I express no view as to the situation that would obtain if it were not his property.

  67. I believe that the objection based solely on the proposition that the gardaí ought to have the first opportunity to inspect the material in question amounts to a claim of privilege over a particular class of documents viz documents in the possession of the gardaí. I can see no basis for it in principle and, inasmuch as it relates to material about a particular case, it would require to be established about that particular material in a context of that particular case (as in the case of reports on the material), and not in general terms. If the Commissioner is compelled to make discovery of the material he can at that stage raise in proper form any specific and case-related reason for its non-disclosure in this particular case. But I would reject the generic claim advanced in the affidavit of Inspector Kelly, quoted above.

  68. Moreover, the insurers, Aviva, had these materials in their possession from early 2009 until July 2010 and have presumably assessed them. The Commissioner came into possession of these items it would appear in July 2010, and has had them ever since.

  69. It must also be borne in mind that the civil proceedings are at an advanced stage and pleadings have closed. No criminal proceedings have even been instituted and it has not proved possible to give any estimate as to when a decision about this might be taken.

  70. Indeed, I would have thought it in the prosecution interest that an action in which the plaintiff will bear at least the initial the onus on the self same issue – whether he himself set the fire which burnt the premises: that is the case the defendants are making – should proceed in advance of the criminal proceedings since the prosecution, by the simple act of observing the civil action, will gain a great deal of information which they probably do not presently have. But that can form no part of the basis for this decision, which turns on whether the Commissioner is entitled to defer the plaintiff’s access to his own recording machinery, and to the fruits of an examination of it, pending criminal proceedings which are entirely hypothetical. Nor do I believe that there is a principle such as that referred to in the affidavit of Inspector Kelly: that the guards, as such, have some kind of a priori right to withhold documents from one litigant (the other has already had them) on account of the possibility that there may be criminal proceedings. It is not necessary to make any comment on the position that would obtain if criminal proceedings were in being.

    Conclusion

  71. I would dismiss the appeal and uphold the judgment of the learned trial judge.

    Justice O’Donnell

  72. I agree with the judgment of the Chief Justice but wish to add some observations in order to explain why I respectfully differ from Hardiman J. both as to the outcome of the case and as to its significance.

  73. First, I do not regard the case as raising any particularly novel issue nor do I consider the judgment of Denham C.J. marks any departure in the law. Furthermore the case does not in my view raise the question as to whether public interest immunity requires that documents be withheld from their owner in civil proceedings. In this case the claim for discovery encompassed not just the video tape, but also, and perhaps more importantly from all points of view, the two expert forensic reports prepared for the insurers and which were their property and not the property of Mr McLaughlin. The case therefore raises the general issue as to the entitlement of the gardaí to withhold from disclosure in civil proceedings documentation which is bona fide required for the purposes of an ongoing investigation which may result in a criminal prosecution.

  74. That issue, is one on which I regard the law as well settled and indeed encapsulated in that portion of the speech of Lord Reid in Conway v Rimmer [1968] AC 910, 953 referred to in both the judgments of my colleagues. The intervening period has not lessened the force and good sense of Lord Reid’s observations and if the matter has not been the subject of more extensive discussion, it is only in my view because it is regarded as well settled.

  75. It does not make any difference in my view that the footage may be considered to be the property of Mr McLaughlin if it too was bona fide required for the purposes of the gardai’s investigation. It is very well established that the police can retain items against their true owner if they are required for the investigation and prosecution of criminal offences. In the landmark case of Dillon v O’Brien and Davis (1887) 20 L.R.Ir 300 it was held that it was a good defence to a claim for detinue by the owner of certain articles taken by the police at the time of the arrest, that they were required as evidence for a criminal prosecution. Relatively recently, in Dunne v DPP [2002] 2 IR 305, this Court approved a decision in Dillon v O’Brien and Davis and cited with approval the English cases of Chic Fashions (West Wales) v Jones [1968] 2 QB 299 and Ghani v Jones [1970] 1 QB 693. In the latter case, the Court held that material in the possession of a wholly innocent third party could be seized for evidential purposes and held for so long as was reasonable. On the decided cases I do not think it makes any difference to this principle whether or not a prosecution is in being. Clearly such a prosecution is not in being at the time of seizure and every item has to be seized for the purpose of an investigation before there can be any decision on a prosecution. If the gardaí can properly resist the proprietary claim of the true owner for the return of pieces of real evidence which are necessary for the purpose of the police investigation, it does not appear to me to be in any way controversial that they can also in an appropriate case, where it is demonstrated that it is necessary to do so, resist a claim for discovery in litigation in civil proceedings, at least until a prosecution is commenced or a decision is taken not to do so, or conceivably that a reasonable time has elapsed to allow such a decision to be made. In either case it is entirely conceivable that return of the item, or disclosure of the document may hamper the investigation. As the outcome of Ghani v Jones shows, the requirement of necessity furnishes considerable protection to the citizen from whom evidential material is received, or seized.

  76. I do not see that this case raises any issue as to priority between civil and criminal proceedings. In this case the Commissioner does not seek a stay on the civil proceedings: he merely seeks to maintain a public interest immunity which it is arguably his duty to assert. As it happens that immunity is limited in time, and as a result the parties to the litigation have the choice whether to proceed without the material in the same way as a party might proceed having failed in the challenge to legal professional privilege, or they can wait until the issue of public interest immunity falls away either by the disclosure of the material in criminal proceedings, or by a decision not to prosecute.

  77. Finally I should say that I do not consider that this is a claim for class privilege. The immunity or privilege is not claimed because the documents or items belong to a certain class of material. The claim made is in respect of the particular significance of this material to an ongoing investigation, and not because of any generic significance of CCTV footage or expert reports. The Court is free to inspect the items if it considers it either appropriate or necessary to do so, and is not bound to accept the Commissioner’s claim. However, the Courts have repeatedly made it clear that the fact that the court may inspect material does not mean that the court must do so to verify any claim for privilege, if the nature of the claim is obvious from the description of the document. Here there was no issue as to the documents in question, or indeed as to the Commissioner’s assertion that they were necessary for the purpose of criminal investigation. The only question was whether that raised a valid claim of immunity, and for the reasons set out by Denham C.J. I consider that it does. That was the issue before the High Court. I would hope that it will not be necessary to determine in this litigation whether a reasonable time has elapsed for the prosecution authorities to make a decision as to prosecution. If that issue is to arise it would require to be determined on the basis of evidence specifically directed to that issue. Indeed if this general issue were to arise for determination again it might benefit from more extensive citation of authority and consideration of principle than was possible in this case.


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