High Court dismisses applicant's ex parte application for inspection of marked electoral register and sealed documents.

THE HIGH COURT

IN THE MATTER OF THE ELECTORAL ACT 1992 (AS AMENDED) AND IN THE

MATTER OF AN APPLICATION FOR AN ORDER FOR INSPECTION OF THE

MARKED ELECTORAL REGISTER AND SEALED DOCUMENTS

FOR PURPOSE OF GARDA INVESTIGATION

Record No: 2025/103IA

[2025] IEHC 349

BETWEEN:

MICHELLE KEANE

APPLICANT

AND

THE CLERK OF THE DÁIL

RESPONDENT

Ex tempore judgment of Ms. Justice Emily Egan on this 19th day of June, 2025

Introduction

1. This judgment arises out of the General Election to Dáil Éireann held on 29th November 2024. The applicant, who was one of the unsuccessful candidates in the constituency of Kerry, seeks to challenge the result of that election. Having been refused leave to present an election petition by Simons J. on 11th March 2025, the applicant now seeks access to certain documents pertaining to the election. She alleges that these documents are required for the purposes of a criminal investigation into events at Toureencahill polling station on the night of the election.

Factual background

2. By way of ex parte docket presented to the court on Tuesday, 27th May 2025, the applicant sought certain reliefs pursuant to a number of sections of the Electoral Act 1992, as amended (“the Electoral Act”).

a) First, the ex parte docket seeks orders under Sections 129 and 130 of the Electoral Act, directing the Clerk of the Dáil to permit the applicant to inspect the marked electoral register for the General Election held on the 29th November, 2024 in the constituency of Kerry and all other constituencies in the country for the purposes of a Garda investigation.

b) Second, the ex parte docket seeks an order directing the Clerk of the Dáil to produce a copy of the marked electoral register for the said election and constituency to the applicant or to An Garda Síochána for the purposes of a criminal investigation.

c) Third, the ex parte docket seeks an order directing that the sealed envelopes containing the marked electoral register and any other related electoral documents for the election in the constituency of Kerry be retained by the appropriate authority and not destroyed until the completion of the Garda investigation into a complaint made by the applicant which will be detailed below.

3. I should say that the applicant also seeks an order that she may disclose any of the aforesaid documents to An Garda Síochána in the context of the Garda investigation on foot of the complaint which she has made. That is not expressly provided for in the ex parte docket, but it is referred to at para. 2 of the grounding affidavit.

4. The applicant avers that on the night of the election she witnessed a presiding officer in Toureencahill polling station tear ballot papers out of a ballot book. The applicant avers on affidavit to several potential offences which could have been committed by reason of the activities which she states that she witnessed. The applicant made a complaint that evening to An Garda Síochána in relation to these alleged electoral irregularities and she exhibits a copy of that complaint.

Application before Simons J.

5. As briefly referred to above, the applicant previously brought an application before Simons J. for leave to issue an election petition. That application was made on broadly the same factual grounds as arise in this case. Simons J. refused leave to present the intended election petition because the time limit prescribed under Rule 3 of the Third Schedule for the purposes of section 132 of the Electoral Act, had expired well in advance of the application for leave. The application and the petition were therefore time barred.

6. The applicant had also applied to Simons J. for the disclosure of certain documents in accordance with Section 130 of the Electoral Act. Those documents were referred to by Simons J. as the “sealed documents”.

They comprised, firstly, the counted ballot papers, secondly the ballot papers rejected at the counting of the votes, thirdly the unused and spoiled ballot papers and fourthly the counterfoils of the ballot papers issued at the polling station in the constituency of Kerry. It appears that that part of the applicant’s present application as is referred to at para 2

(c) above effectively relates, in part at least, to these “sealed documents”.

7. Simons J. also refused the applicant’s request for production or inspection of the “sealed documents”. He held as the application for leave to file the petition was denied, the application for documents, which could have otherwise potentially been considered, no longer arose.

Relevant Statutory Provisions

8. Section 129 of the Electoral Act provides that on the completion of the counting of the votes the returning officer shall place in separate sealed packages the “sealed documents” referred to above. Those documents are then in accordance with Section 129 (2) forwarded to the Clerk of the Dáil. Subsection 3 then provides that the “sealed documents” shall be retained by the Clerk of the Dáil for six months from the date of the poll at the election and that at the expiration of the six month period the Clerk of the Dáil shall, unless otherwise directed by an order of the High Court, or unless they have reason to believe that the documents may be required for the purposes of instituting or maintaining a prosecution for an offence under the Act, cause the documents to be destroyed.

9. Section 130 of the Electoral Act provides that no person shall be allowed to inspect any of the documents referred to in that section except under an order of the High Court. The documents referred to are effectively the counterfoils of the ballot papers sent to the postal voters, counterfoils of the ballot papers delivered to special voters, certain documents referred to in the context of postal votes and the “sealed documents” referred to in the context of Section 129. As stated above, the section goes on to provide at Subsection 3 that an order not to destroy any of the documents shall not be made unless the court is satisfied that the inspection or production of the documents is required for the purposes of instituting or maintaining a prosecution for an offence under the Act or for the purposes of a petition.

Ex parte ruling on 27th May 2025

10. On 27th May 2025, I delivered an oral ruling in respect of the ex parte application which I subsequently circulated to the parties. In my ruling, I noted that the application was not made in the context of, or for the purposes of, an election petition. Instead, it was made on the basis that orders for production, inspection and preservation of the documents concerned were required for the purposes of instituting or maintaining a prosecution for an offence under the Electoral Act.

11. I expressed doubt that the documents concerned were in fact being sought “for the purposes of instituting or maintaining a prosecution for an offence under the Act” as required by Section 130 of the Electoral Act. I noted that such criminal prosecutions would generally be brought by the usual prosecuting authorities. The applicant had not averred that any such prosecution had in fact been instituted or maintained by An Garda Síochána. One would have expected that, if An Garda Síochána were contemplating a prosecution and were of the opinion that the “sealed documents” might potentially be required for this purpose, then the relevant application for such documents would be made by them. On the other hand, section 130(3) does permit an order to be made for the purposes of instituting or maintaining a prosecution, and thus potentially in advance of the initiation of the prosecution itself. Therefore, the fact that no prosecution had yet been initiated and that An Garda Síochána had made no request for access to the documents was not fatal to the application.

12. I also noted that the applicant did not aver that she herself had instituted, or that she intended to institute, a prosecution as a common informer, assuming of course that same is permitted by the Electoral Act.

13. I noted that it was clear from Section 129 of the Electoral Act, and in particular Section 129 (3) thereof, that unless otherwise directed by an order of the court, the Clerk of the Dáil shall destroy the “sealed documents” within six months of the date of the poll. Save as specified in the section, it does not appear to confer any discretion on the Clerk of the Dáil to desist from or defer this destruction.

14. Therefore, having regard to:

(a) the lack of clarity as to the current status of the Garda investigation and in particular as to whether it is their intention to institute criminal proceedings,

(b) the fact that the destruction of the “sealed documents” was likely to render any contemplated prosecution moot,

(c) the fact that the destruction of the “sealed documents” was likely to render moot the current proceedings, and

(d) the lack of an apparent discretion on the part of the Clerk of the Dáil to desist from or defer the destruction of the “sealed documents” on 29th May 2025.

15. I was satisfied that it was in order to make an interim order pursuant to Section 129 (3) of the Electoral Act to both permit, and indeed ensure, the preservation of the “sealed documents” pending further evidence on the factual issues outlined.

16. Therefore, to prevent the automatic destruction of the “sealed documents” from the Kerry constituency before the matter could be more fully heard, I ordered that same should not be destroyed pending further order, directed service on the respondent and listed the matter on an inter partes basis on Thursday, 29th May Inter partes hearing on 29th May 2025

17. A brief inter partes hearing took place on 29th May 2025. It is not necessary to detail here the arguments and submissions of the parties because same have now been overtaken by events.

18. Thus, at the conclusion of the hearing, the respondent agreed to inquire of An Garda Síochána as to whether the electoral materials held by the Clerk of the Dáil were required by An Garda Síochána for the purposes of instituting or maintaining a prosecution into the matters raised in the applicant’s complaint.

19. Accordingly, I adjourned the proceedings for a short period to enable the matter to be clarified on the respondent’s undertaking not to proceed with the destruction of the documents without further order of the court.

Inter partes hearing on 18th June 2025

20. In an updated affidavit, the applicant exhibits a letter of 29th May 2025 from a Superintendent in Bandon Garda Station. This stated that, based on the evidence gathered to date, An Garda Síochána had found no criminal offence and that therefore no grounds existed to seek a warrant for the electoral documents the applicant sought. The letter continued to state that if the applicant was successful in obtaining the documentation through the High Court, An Garda Síochána would examine them in conjunction with other evidence gathered to date and make a further assessment. The applicant’s updated affidavit also exhibits other materials which she believes support her allegation of election fraud, which are not of immediate relevance.

21. The respondent’s updated affidavit exhibits its letter to An Garda Síochána dated 30th May 2025 enquiring whether the electoral materials held by the Clerk of the Dáil were required by An Garda Síochána for the purposes of instituting or maintaining a prosecution into the matters raised in the applicant’s complaint. A response was received on Friday, 13th June 2025 from a Detective Inspector from the Cork County Division. This confirms that the electoral material in question is currently required by An Garda Síochána as part of their assessment and investigation into the allegations made by the applicant.

22. The respondent accepts that this correspondence gives rise to a reasonable belief on their part that the “sealed documents” may be required by An Garda Síochána for the purposes of instituting or maintaining a prosecution for an offence under the Electoral Act and has indicated that, in accordance with Section 130 of the Electoral Act, the documents will therefore be retained and will not be destroyed. The respondent has confirmed that, pending further clarification from An Garda Síochána, they are currently of that reasonable belief in relation to the totality of the electoral documents pertaining to the General Election and not solely those relating to the Kerry constituency. However, the respondent intends to clarify the precise scope of the documents which should be preserved in correspondence with An Garda Síochána and to proceed accordingly. There is therefore no requirement to make the order sought by the applicant preserving the “sealed documents” until the completion of the Garda investigation.

23. The respondent has also undertaken to notify the applicant if and when they are no longer of that reasonable belief and to do so in advance of any consequent destruction of the documents.

24. I am also not satisfied that that there are any grounds upon which this court either could or should grant an order permitting the applicant to inspect the “sealed documents”. Same can only be granted where the court is satisfied either that the inspection or production of such documents is required for the purposes of a petition or where same is required for the purposes of instituting or maintaining a prosecution for an offence under the Electoral Act. As to the first potential basis, the applicant’s application for leave to file a petition has been refused and any further such petition would be out of time for the reasons explained by Simons J. As to the second potential basis, it is primarily for An Garda Síochána, as prosecuting authority, to seek the production and inspection of such documents as are deemed necessary. Moreover, this matter has been before me on several occasions and the applicant has not averred, or even suggested, that she personally has instituted, intends to institute or is even contemplating the institution of a prosecution for an offence under the Electoral Act such as might be capable of grounding an independent application for production or inspection on her own behalf.

25. As such, I am not satisfied that the documents being sought by the applicant are being sought “for the purposes of instituting or maintaining a prosecution for an offence under the Act”. I therefore decline to make any of the orders sought for production and inspection of the “sealed documents”.

26. Turning to the other reliefs sought by the applicant:

27. She seeks a direction that the Clerk of the Dáil permit her to inspect the marked electoral register. My understanding is that such inspection has now been permitted and that this relief is no longer therefore required.

28. The applicant also seeks an order directing the Clerk of the Dáil to produce a copy of the marked electoral register to the applicant or to An Garda Síochána for the purposes of a criminal investigation. My understanding is that the respondent has now provided the applicant with access to these documents in electronic form as required by the Electoral Act. Although the applicant maintains that she has encountered difficulties in opening some of these links, I accept that the respondent is prepared to assist her with this. I am therefore confident that this glitch can and will be resolved and that this relief is not required.

29. Finally, the applicant seeks an order that she may effectively disclose the contents of the electoral register to An Garda Síochána in the context of the Garda investigation on foot of her complaint. The respondent states that the applicant’s impression that she may not disclose these documents to An Garda Síochána without a court order is erroneous. I accept that this is so. I am satisfied that no court order is required and that the applicant may, if requested by An Garda Síochána for the purposes of its investigations, disclose any such documents.