High Court grants access to Special Criminal Court transcripts for murder appeal, rejecting security risk as legal prejudice.

THE HIGH COURT

[2025] IEHC 489

Record Number H.SP.2025/26

JONATHAN KEOGH

Plaintiff

-and-

SPECIAL CRIMINAL COURT

Defendant

THE DIRECTOR OF PUBLIC PROSECUTIONS

and THOMAS MCCONNELL

Notice Parties

JUDGMENT of Ms Justice Nessa Cahill delivered on 12 September 2025

OVERVIEW

1. Mr. Keogh, who is currently appealing a conviction for murder, is seeking access to transcripts held by the Special Criminal Court in relation to the trial of Mr. McConnell for the same murder.

2. For the reasons set out in this Judgment, I am satisfied that it is within the inherent jurisdiction of the High Court to make the order sought; that Mr. Keogh has demonstrated that it is necessary for the purposes of justice that the order be made; and that there is no relevant legal prejudice that precludes the granting of access to the transcripts in question.

INTRODUCTION

3. On 2 November 2018, following a trial before the Special Criminal Court, Mr. Jonathan Keogh was convicted of the murder of Mr. Gareth Hutch. He received a mandatory life sentence, which he is currently serving in Mountjoy Prison. On 29 November 2018, Mr. Keogh filed a notice of appeal against this conviction, which appeal has been case managed since then (“the Appeal”).

4. The second notice party (Mr. Thomas McConnell) was not in the jurisdiction at the time of the trial and conviction of Mr. Keogh. Mr. McConnell was subsequently extradited to the State and, on 20 December 2024, was convicted by the Special Criminal Court of the murder of Mr.

Gareth Hutch. He is currently imprisoned in the Midlands Prison in County Laois.

5. This Application was issued on 13 February 2025, with the Special Criminal Court as defendant. By order of the Deputy Master dated 4 March 2025 (perfected on 12 March 2025), the Director of Public Prosecutions (“the DPP”) and Mr. McConnell were joined as notice parties to the Application. The matter was transferred to the Judges’ List on 18 March 2025 and was heard on 23 June 2024. The only persons represented at the hearing were Mr. Keogh and Mr. McConnell.

6. The order sought by this Application is an order granting Mr. Keogh’s legal representatives access to a copy of the transcripts and the judgment of the Special Criminal Court in relation to the trial of Mr. McConnell. This is stated to be for the purpose of using that material in the Appeal.

7. The Application is made by way of Special Summons and is grounded on the affidavit of Aoife McNicholl, solicitor of Sheehan and Partners, the solicitors on record for Mr. Keogh, sworn on

13 February 2025. A supplemental affidavit was then sworn by Ms. McNicholl on 18 March 2025. A replying affidavit was sworn by Yvonne Bambury, solicitor of Fahy Bambury & Co.

solicitors, solicitors on record for Mr. McConnell, on 1 April 2025. A replying affidavit was sworn by Ms. McNicholl on 8 April 2025.

8. The Special Criminal Court indicated via email that it is neutral and not in a position to either consent or object to the order sought. The DPP stated in correspondence that it was a matter for “the competent court” to decide whether trial transcripts should be released. Neither the Special Criminal Court nor the DPP participated in the Application.

9. The Application is opposed by Mr. McConnell, save that he indicated that he would consent to Mr. Keogh having access to the transcripts of the evidence of two specific witnesses.

10. Three questions arise:

(a) First, the jurisdiction of this Court to decide the Application;

(b) Second, the test that must be satisfied; and

(c) Third, how this test falls to be applied to the facts of this Application.

A. JURISDICTION

11. Both parties represented at the hearing of this Application were of the view that this Court has inherent jurisdiction to make the order sought and that it is the correct court to do so. It was said on behalf of Mr. Keogh that this is a question of protection of constitutional rights and that this Court must be in a position to exercise that inherent jurisdiction, even absent an applicable statutory provision. Neither the Special Criminal Court nor the DPP indicated any view to the contrary. As this is a question of jurisdiction, I believe it is nonetheless necessary for me to consider and determine this issue, rather than proceeding on the basis of the agreed position of the parties.

12. Before considering whether this Court has an inherent jurisdiction to hear and determine this Application, I must be satisfied that there is there is no rule of procedure in place at this point in time which could be invoked for that purpose. The necessity of this step in the analysis was confirmed by the Supreme Court in Lopes v. Minister for Justice [2014] 2 IR 301 at [15] (Clarke J, Laffoy and Dunne JJ concurring):

“The purpose of any asserted inherent jurisdiction must…necessarily, involve a situation where the court enjoys that inherent jurisdiction to supplement procedural law in cases not covered, or adequately covered, by procedural law itself. An inherent jurisdiction should not be invoked where there is a satisfactory and existing regime available for dealing with the issue under procedural law, for to do so would set procedural law at nought.”

13. The rules governing practice and procedure before the two Special Criminal Courts are primarily contained in the Offences against the State Acts 1939 to 1998 Special Criminal Court (No.1) Rules 2016, and the Offences against the State Acts 1939 to 1998 Special Criminal Court (No.2) Rules 2016 (referred to in this judgment as “the Special Criminal Court Rules 2016”). These Rules each provide in rule 28:

“The transcript writer shall produce a typewritten or printed transcript of the record of any trial or proceeding in the Court or any part of such trial or proceeding and shall certify the same to be a complete and correct transcript of the whole of such record, or of the part required, and shall lodge the same with the Registrar.”

14. There is therefore a transcript of the record of any trial conducted in the Special Criminal Court.

There is however no provision of the Special Criminal Court Rules 2016 which specifically deals with access to such transcripts by third parties. As will be seen, the Special Criminal Court has previously determined that it lacks jurisdiction to deal with such an application.

15. The Rules of the Superior Courts do provide in Order 123 for applications to be made for access to the digital audio recording (“DAR”) of proceedings. Rule 9(1) (as substituted by the Rules of the Superior Courts (Court of Appeal Act 2014) 2014) provides,

“Any party or person who seeks access to any part of a record of proceedings (in this rule referred to as the “relevant record”) which is held by or for the Supreme Court, the Court of Appeal or the Court, as the case may be (in this rule referred to as the “relevant court”) may apply to the relevant court by motion in the proceedings concerned on notice to the other party or the parties to those proceedings, grounded upon an affidavit.”

16. The breadth of this rule was addressed in the judgment of the Court of Appeal in Bank of Ireland v. Gormley [2020] IECA 102 (Murray J., Edwards and Faherty JJ concurring). That judgment confirmed ([19]) that Order 123, Rule 9(1) is not limited to situations where the recording is sought to advance an appeal or where the proceedings in question are still live. However, there is a relevant limitation noted by Murray J., namely that an application under Order 123, Rule 9(1) must be brought “in the proceedings concerned”.

17. This Application is not – and could not be - brought “in the proceedings concerned” (which are the concluded Special Criminal Court proceedings against Mr. McConnell). Order 123, Rule 9(1) is concerned with records held by or for the High Court, the Court of Appeal or the Supreme Court (“the Court” being defined by Order 125, Rule 1, as “the High Court or a Judge or Judges thereof…”). It does not on its terms apply to an application for transcripts prepared pursuant to the Special Criminal Court Rules 2016 and held by the Special Criminal Court.

There is the additional consideration that the jurisdiction of the Special Criminal Court is defined as the jurisdiction “to try and to convict or acquit any person lawfully brought before that Court for trial” (Offences against the State Act 1939, section 43) and, according to section 41(1) of that Act, the Special Criminal Court “shall have control of its own procedure in all respects”. Each of these points confirm that Order 123, Rule 9(1) is simply not a procedural rule that governs access to transcripts of trials conducted in the Special Criminal Court. Order 86C, rule 9, is similarly unavailable as a procedural route, given that it only governs access to trial transcripts by parties to pending appeals in the same proceedings.

18. There therefore appears to be no suitable procedural rule in the Special Criminal Court Rules 2016 or in the Rules of the Superior Courts under which this Application could be made. The position of the parties who participated in the Application was that no such rule does exist. The next question is whether this Court has an inherent jurisdiction to make the order sought.

19. As a general proposition, there are circumstances in which the High Court can exercise an inherent jurisdiction to entertain and determine applications for which there is no statutory basis. This can most notably arise when necessary to vindicate constitutional rights. Counsel for Mr. Keogh helpfully opened the judgment of Hyland J. in Re KK [2023] IEHC 565 which demonstrates the potential breadth and importance of this Court’s inherent jurisdiction (dealing in that case with the detention of persons lacking capacity).

20. There are two relevant judgments which address the inherent jurisdiction of the High Court to make directions or orders with regard to access to transcripts of trials in the Special Criminal Court, both of which were addressed at the hearing of this Application. The first is Kelly v.

Ireland [1986] ILRM 318 (“Kelly”) and the second is Breslin v. McKenna [2009] 1 IR 298 (“Breslin”).

21. In Kelly the question that arose was whether a ruling by the Special Criminal Court as to the voluntariness and admissibility of a statement by the accused could give rise to issue estoppel against him in subsequent civil proceedings. This in turn raised a question about how the ruling could be proved in evidence. O’Hanlon J. addressed this point as follows:

"(Counsel) for the plaintiff submitted that there was no procedure available for the formal proof in later civil 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 s. 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." (p. 323).

22. This conclusion was endorsed by the Supreme Court in Breslin. That case arose from civil proceedings commenced in Northern Ireland by a number of victims and relatives of victims of bombings that took place in Omagh, County Tyrone in August 1998. The defendants had previously been tried and convicted of various criminal offences in the Special Criminal Court.

At the time of the Supreme Court appeal in Breslin, one of the defendants was facing a retrial, and another was facing the possibility of a retrial (the judgment of the Supreme Court on his appeal against conviction was then awaited).

23. On the application of the plaintiffs, both the High Court and Court of Appeal in Northern Ireland granted an order directing the defendants to produce transcripts and books of evidence from their trials before the Special Criminal Court. This order was subject to the caveat that the defendants were not obliged to disclose documentation if not permitted by Irish law to do so.

24. The plaintiffs made an application to the Special Criminal Court for a ruling on this question.

That Court refused the application on the ground that it did not have jurisdiction to make the order sought and that any jurisdiction to make such an order rested with the High Court. The plaintiffs then applied to the High Court for a declaration that there was no impediment under Irish law to the production of the books of evidence or transcripts from the defendants’ trials.

The High Court refused to grant that order in respect of the transcripts, but granted leave to produce the books of evidence. There was an appeal and cross-appeal to the Supreme Court.

Following the hearing of that appeal, an ex tempore decision was given by Murray C.J., which was followed by the delivery of reserved judgments by Geoghan J. (Murray C.J. concurring)

and Hardiman J. (the latter dissenting as to the outcome, but not the applicable principles).

25. On the question of jurisdiction, Geoghegan J. addressed the ruling of the Special Criminal Court that it lacked jurisdiction to make the order sought as follows:

“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.” ([18])

26. This paragraph of the judgment of Geoghegan J. does perhaps leave open the possibility that the Special Criminal Court’s jurisdiction to decide whether to direct production of transcripts or books of evidence of concluded trials could be the subject of argument in another case.

However, this is not relevant here. The more important finding by Geoghegan J. is the finding that the High Court does have “full jurisdiction” to permit the production of transcripts and books of evidence from trials in the Special Criminal Court.

27. In making this finding, the Supreme Court disagreed with and overturned the refusal by Gilligan

J. to permit access to the transcripts (which decision was based on the Rules of the Superior Courts):

“…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 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” (Geoghegan J. at [39).

28. Geoghegan J. agreed with the plaintiff in Breslin that Order 86, Rules 14 and 17 of the Rules (now broadly reflected in Order 86C, Rule 9) are concerned with administrative arrangements to ensure access to trial transcripts for the purpose of an ensuing appeal and not with access to transcripts for different purposes or separate proceedings. He also accepted that transcripts could be the subject of discovery applications in civil proceedings. It may be noted for completeness that the present formulation of Order 123, Rule 9 did not then exist and this provision was accordingly not addressed by the Supreme Court (although, as already found, it would not in any event be available for this Application).

29. Geoghegan J. then proceeded to find that there was no impediment as a matter of Irish law to the production of the transcripts. Hardiman J. agreed with the following statement of principle in the judgment of Geoghegan J. (which in turn endorsed the judgment of O’Hanlon J. in Kelly):

"[42] … 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.”

30. These findings confirm that, while there is (and was) no provision of the Rules of the Superior Courts that provides for such an application, a party may apply to the High Court to exercise an inherent jurisdiction to permit the production of transcripts of proceedings that took place before the Special Criminal Court.

31. The decision in Breslin is highly relevant to this Application. However, it must be observed that there are certain important legal and factual distinctions between this case and Breslin, some of which were noted by counsel for Mr. McConnell at the hearing of this Application.

The first distinction is that, in Breslin, an order had been made in the Northern Irish proceedings directing disclosure of the transcripts by the defendants. The order sought from the courts in this jurisdiction was permissive rather than directive in nature. Ultimately, the Supreme Court permitted, or consented to, rather than directed, the production of the transcripts in question.

Mr. Keogh, by contrast, is seeking an order directing the Special Criminal Court to produce the transcripts. This is a different form of order.

32. Another important distinction is that, in Breslin, the applications in Northern Ireland and in the State were against the same defendants, who were also the persons convicted in the trials of which the transcripts were sought. By contrast, here, Mr. Keogh seeks an order as against the Special Criminal Court directing the production of transcripts of a trial to which he was not party. A related point is that the application in Breslin was made for the purpose of using the transcripts in civil proceedings against the persons whose trials they recorded. Here, the Application is made to enable the use of the transcripts of Mr. McConnell’s trial in an appeal against Mr. Keogh’s conviction, an appeal in respect of which Mr. McConnell himself has no role.

33. While these distinctions are certainly not minor ones, I am satisfied that their relevance lies more in guiding this Court as to how to exercise its inherent jurisdiction on this Application, rather than as a bar to the existence or exercise of that jurisdiction.

34. This is primarily because the findings made by the Supreme Court in Breslin are couched in general terms and I am satisfied that they should be treated as binding determinations that the High Court has, as a matter of principle, inherent jurisdiction to direct the disclosure of transcripts of trials that were conducted before the Special Criminal Court.

35. In any event, and despite the differences just identified, it appears to me that there is no reason of principle to decide that the High Court would have jurisdiction to permit production of the transcripts in Breslin but not to do so in this case. Quite to the contrary: the case for inherent jurisdiction must be even more strong in a case such as this, where an appeal against a criminal conviction is at stake. No argument to the contrary was advanced by the Special Criminal Court or the notice parties to this Application.

36. A key factor here is that I can see no alternative avenue by which Mr. Keogh could seek access to the transcripts, given the (apparent) lack of jurisdiction of the Special Criminal Court to deal with it; the fact that he is not an appellant asking the Court of Appeal to furnish a transcript of his own trial and cannot therefore rely on Order 86C, rule 9; there are no civil proceedings within which an application for discovery can be made (as in Breslin); it is not an application that may be made under Order 123; and it not a situation that appears to be otherwise captured by an available procedural or statutory provision.

37. In summary, I am satisfied by reference to the judgments of the Supreme Court in Breslin and the rules of procedure currently in place that it is within the inherent jurisdiction of this Court to decide whether the Special Criminal Court should provide Mr. Keogh with access to the transcript of the trial of Mr. McConnell and the judgment of the Special Criminal Court following that trial.

B. APPLICABLE TEST

38. The test to apply when exercising the inherent jurisdiction to direct the disclosure of Special Criminal Court transcripts was formulated as follows by O’Hanlon J. in Kelly:

“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" (page 323).

39. This was adopted by the Supreme Court in Breslin, Geoghegan J. finding that:

“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 so doing.” ([42]).

40. This approach was also endorsed by Hardiman J. and therefore represents the unanimous view of the Supreme Court as to how this Application should be assessed. Consequently, the two questions to ask are (a) whether the disclosure sought is necessary for the purpose of doing justice and (b) whether any relevant legal prejudice would be caused by the disclosure sought.

41. In Breslin, Geoghegan J. emphasised the weight that should be attached to a decision of another jurisdiction, if the disclosure is sought in aid of proceedings in that other jurisdiction:

“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." [42]

42. There are several notable aspects of this statement. The most relevant for the purpose of this Application is that it appears to blend the two criteria of necessity and “relevant legal prejudice”

(and heightens the latter to “fundamental injustice”) rather than treating them as wholly distinct or sequential requirements. A similar balancing of the two can be seen in the judgment of Hardiman J.

43. The judgment of Geoghegan J. also demonstrates the weight to attach to decisions of courts of other jurisdictions: there is no apparent need to examine such decisions (and there was limited discussion of the basis of the Northern Irish decisions in Breslin). Rather, if a court of another jurisdiction has found the disclosure in question to be “necessary”, the onus that otherwise rests on the applicant for disclosure to show “no relevant legal prejudice” shifts and heightens to an onus on the respondent to the disclosure application to show “fundamental injustice”.

44. Apart from the question of the weight to attach to decisions of other jurisdictions, there is limited guidance in the judgments of Geoghegan J. or Hardiman J. as to what being “necessary for the purpose of doing justice” means and what level of evidence is required to support an assertion of such necessity.

45. The only reservation expressed by Hardiman J. on this point concerned the party against whom disclosure was sought. Hardiman J. did not regard the defendants to be the most appropriate respondents and noted, “It would seem a more natural and reasonable procedure to apply for the production of the documents to the State authorities who made them and introduced them into the criminal proceedings” ([12]). He was not therefore satisfied that it had been shown that it was necessary to make the orders sought as against the named defendants and was critical of the failure to show why the documentation was not sought from the State authorities. This criticism appears to have been focussed on the books of evidence rather than the transcripts and was moreover not the main point of his dissent, which was that there was insufficient information to decide whether there was “no relevant legal prejudice”.

46. On the question of “relevant legal prejudice”, Hardiman J. differed fundamentally from the majority judgment of Geoghegan J. Geoghegan J. accepted there would be a fair trial in

Northern Ireland and found the possibility or actuality of a pending retrial of two of the defendants not to be relevant to deciding whether there was a risk of relevant legal prejudice:

“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 defendants 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.” ([44])

47. The majority judgment therefore found that there was not a relevant risk of legal prejudice, regardless of whether there was to be a retrial.

48. Hardiman J.’s disagreement with this finding was based heavily on his criticisms of the dearth of information that was provided by the plaintiffs regarding the likely permissible and intended use of the documentation. He observed that, given the proximity in time between the commencement of the Northern Irish proceedings and the hearing of the appeal in the Supreme Court (within days of each other), views must have been formed about how the plaintiffs would seek to use the transcripts and books of evidence in the Northern Irish proceedings and the likely evidential status of that material in those proceedings. This information was not however shared with the Supreme Court, something of which Hardiman J. was critical. He concluded that there should have been a “much more complete showing of information, which I consider as a matter of great probability was in fact available to the plaintiffs” and that, absent such information, it was not possible for the Court to determine that it was appropriate to permit the production of the material in question. The concern expressed by Hardiman J. was that, “the plaintiffs' case was so minimally and vaguely presented as to make rebuttal, or the demonstration of prejudice, very difficult” ([7]). He found that, “[i]n the absence of evidence of this sort, I do not find it possible to be satisfied that there is, in the words of Geoghegan J., ‘no relevant legal prejudice’ to the other party” ([9]).

49. Hardiman J. accepted that the transcript of the prosecution evidence was “of course, quite properly likely to contain material prejudicial to the defendants”, before noting that “[t]hat fact alone, obviously, cannot be a reason for its non-production” ([11]). He repeated that it was necessary to know the intended use of the documentation to be able to exercise the discretion to direct or permit its production (or not to do so). This points to a need to balance the use intended for the documentation with the prejudice likely to be caused and, like the judgment of Geoghegan J., points away from a sequential or tiered approach to the two criteria.

50. Given the diverging views in the Supreme Court in Breslin and the heavy weight attached by the majority judgment to the decisions of the Northern Irish courts, there is a lack of clarity as regards what precisely needs to be shown to obtain an order permitting disclosure of transcripts from the Special Criminal Court when there is no relevant decision of another jurisdiction.

51. Some assistance may be derived from the judgment of Murray J. in Bank of Ireland v. Gormley (which was addressed by the parties to this Application). That judgment arose from an application under Order 123, Rule 9(1) which, it may be noted, is couched in similar terms to the test adopted in Breslin: “the relevant court may, where it considers it necessary in the interests of justice so to do, permit the applicant to have such access to all or such part of the relevant record...”

52. Murray J. set out the following guidance with regard to the operation of this rule:

“Access to the DAR is not automatic, and it does not follow – even for a party – as a matter of right (see Hudson v. Halpin [2013] IEHC 4). It must be established that it is in the interests of justice to grant the Order. Thus, a party seeking access to the DAR must give some reason for seeking same. While very often parties seeking such access will require it to enable the further prosecution of their proceedings or an appeal thereof, the power of the Court to grant access to the DAR is not limited to these situations. The DAR can be legitimately sought, for example, because of its potential relevance to other related proceedings (see for example Knowles v Governor of Limerick Prison [2016] IEHC 33 at para. 31).”

53. This demonstrates that it may be shown that the disclosure of transcripts is “necessary in the interests of justice” within the meaning of Order 123, Rule 9(1) if the applicant gives “some reason for seeking same”, whether for the prosecution of the proceedings or an appeal in the same matter in which the application is made, or because the documents have “potential relevance to other related proceedings”. Given a near-identical formulation of “necessary for the purpose of doing justice” is used in the Supreme Court judgments in Breslin to govern applications under the inherent jurisdiction of the Court, the interpretation of Order 123, Rule 9(1) by the Court of Appeal in Bank of Ireland v. Gormley is certainly persuasive in the context of the present Application.

54. There are certain relevant conclusions that may be drawn about the test to apply on this Application:

55. First, there is no automatic right to have access to the transcript of proceedings before the Special Criminal Court to which a person was not party.

56. Second, the onus rests on Mr. Keogh to satisfy this Court that it is necessary to do justice that the transcripts be produced to him and that this is not outweighed by a risk of “relevant legal prejudice”. This placement of the onus seems relatively clear from the judgment of Hardiman

J. in Breslin.

57. Third, there is no specific guidance as to what being “necessary for the purpose of doing justice”

means. It appears to me that the onus on an applicant seeking disclosure or production of transcripts cannot be an onus to show absolute necessity, such that the case in the other legal proceedings hinges entirely on the documentation sought. Something less onerous must be intended, given the balance between necessity and prejudice that was conducted in the judgments in Breslin. Indeed, the judgment of the Court of Appeal in Gormley suggests that the giving of “some reason” to show the documentation is necessary may suffice (for the nearidentical formulation in Order 123, Rule 9(1)). I am also mindful that transcripts of this nature can be the subject of discovery applications. This is addressed in Breslin (Geoghegan J. referred to Minister for Justice v. Information Commissioner [2001] 3 IR 43 and Chambers v. Times Newspapers Ltd. [1999] 2 IR 424 on this point at [39], [40], [43]). It cannot be correct that a significantly more onerous test of necessity would apply to this application by Mr. Keogh made in contemplation of an appeal against conviction, than would apply to a civil action in which discovery of the transcripts are sought to gain litigation advantage (with necessity largely assumed once the criterion of relevance is met: see Taylor v. Clonmel Healthcare Limited [2004] 1 IR 169, [17]).

58. However, it is also vitally important that the flexibility of this Court’s inherent jurisdiction be maintained. Hyland J. emphasised this in Re KK, noting that “it is not appropriate to establish immutable rules in the context of inherent jurisdiction given the flexibility of the jurisdiction”

([45]).

59. There is a wide diversity of circumstances in which the Court may be called on to exercise the jurisdiction at issue here, and this must be assessed on a case-by-case basis. No one formulation will be appropriate for all cases in which transcripts from a concluded criminal trial are sought for use in separate proceedings, but it would seem hard to justify imposing a more stringent, rigorous test of necessity in an application of this nature than that which applies in a discovery application or an application under Order 123, for example.

60. Fourth, it seems from the judgments of both Geoghegan J. and Hardiman J. in Breslin that a balancing exercise should be carried out, which does not necessarily treat the two requirements (of necessity to do justice and want of relevant legal prejudice) sequentially or independently

of each other. Instead, the assessment that should be carried out involves balancing both factors.

61. Finally, the mere fact that a transcript will contain prejudicial material is not sufficient to resist its production. This is plain from the judgment of Hardiman J. in Breslin.

62. The question that remains somewhat open after Breslin is how much information is required (particularly when there is no judgment of another jurisdiction to weigh). Bank of Ireland v.

Gormley requires that reasons must be given to justify an application for access to transcripts under Order 123, Rule 9(1), but no particular level of information is indicated.

63. The next question is how the test just summarised falls to be applied to the facts of this Application.

C. APPLICATION OF THE TEST HERE

64. The position advanced on behalf of Mr Keogh is that the transcripts of the evidence given at Mr McConnell’s trial are potentially relevant to the Appeal. It was said that, if Mr. McConnell had been in the jurisdiction at the time of the trial of Mr. Keogh, the two men would have been tried on the same indictment and Mr. Keogh would then have been aware of the case being made against Mr. McConnell and the evidence being relied upon in his prosecution.

65. The submission that is made on behalf of Mr. Keogh is that it was solely because Mr.

McConnell was not in the jurisdiction at the time of Mr. Keogh’s conviction that Mr. Keogh was not aware of the evidence relied upon as against Mr. McConnell. It is contended that procedural fairness and the right to be able to fairly present and prosecute the Appeal require that Mr. Keogh be given access to copies of the transcript and judgment in Mr. McConnell's case. This is said to be necessary to enable Mr. Kehoe and his legal team to assess the overlaps and inconsistencies between the evidence relied upon in the two prosecutions. Particular emphasis is placed the assertion that a key witness from Mr. Keogh’s trial (Ms. McDonnell)

also gave evidence in Mr. McConnell’s trial and that Mr. Keogh requires the transcripts to be able to ascertain and test the consistency of that witness’ evidence as between the two trials. It is said that challenges to the evidence of this particular witness forms the basis of six of the nineteen grounds of appeal.

66. An issue was also raised regarding the evidence of a member of An Garda Siochana (Detective Garda Keyes) who gave evidence in the trial of Mr. Keogh, but was subsequently suspended.

It was confirmed in the affidavits sworn in this Application that Detective Garda Keyes also gave evidence (by means of a short statement) in Mr. McConnell’s trial. A letter was sent on behalf of the DPP on 12 February 2025 (exhibited to the grounding affidavit of Ms. McNicholl), in which the DPP states that an application was made by Mr. McConnell’s legal team for papers regarding the disciplinary investigation into Detective Garda Keyes to be reviewed by the Special Criminal Court. Following this review, the Court refused to order disclosure of the papers to Mr. McConnell, on the basis they were not relevant to the trial. The DPP has refused to disclose that material to Mr. Keogh relying on the same ruling. Mr. Keogh’s legal team asserts that access to the Court’s ruling is relevant to establishing whether the same reasons for refusing disclosure do or do not apply to his case.

67. Mr. McConnell consents to the provision to Mr. Keogh of portions of the transcripts related to specific witnesses (including the two witnesses just mentioned), but opposes the provision of the entire trial transcript. Concerns about the incurring of costs are raised in correspondence.

68. In opposing the Application, it is said that the necessity to have access to the full transcript has not been shown and that fair procedures does not require the orders sought. Ms. Bambury in her replying affidavit states that there is consent to the disclosure of the transcripts of the evidence of Ms. McDonnell and the portion of the transcript that contains the statement of Detective Garda Keyes and that there is no justification for the entire transcripts of the trial and judgment to be furnished. She also asserts that the full transcripts are not required to ascertain the consistency of the evidence given, as the passage of time between the first trial and the second will inevitably have led to differences in the ability of the witnesses to recall events.

69. It is also contended on behalf of Mr. McConnell that the transcripts would include sensitive material which was not reported upon publicly and the disclosure of which could create a security risk for him.

70. In reply, Ms. McNicholl states that Mr. Keogh is not able to identify the precise portions of the transcript that are relevant, not having been present at the trial, but that the transcripts and judgment are clearly relevant to the Appeal. It is said that the transcripts are required to identify inconsistencies as well as any new material that has come to light between the two trials.

71. Several additional points were made on behalf of Mr. Keogh in advancing this Application. It was contended that:

(a) The trial was conducted in public and the default should be a right of access to the transcript;

(b) The trial and judgment were already in the public domain;

(c) Mr. McConnell is not the custodian of the transcripts and the Special Criminal Court is not objecting to their disclosure;

(d) While Mr. McConnell is opposing disclosure on the basis of sensitivity of the material and the apprehension of a security risk, that position is not tenable, given that the trial was in public and was subject to media reporting.

72. Ms. McNicholl did offer to provide such undertakings as may be necessary to ensure the protection of the documentation, such as by limiting access to it. It was also indicated that, in the event that portions of the transcript only were provided, liberty would be sought to re-enter the matter if this appeared necessary from a review of the portions provided.

73. I would make the following points:

74. First, there is no opposition by Mr. McConnell to Mr. Keogh being given access to certain portions of the transcripts of his trial before the Special Criminal Court.

75. Second, there is no dispute that the remainder of the transcripts could potentially be relevant to Mr. Keogh’s appeal against conviction.

76. Third, whereas Breslin concerned an application to get transcripts to assist in advancing a civil claim, Mr. Keogh seeks the transcripts here to assist in his appeal against conviction for murder.

The risk of prejudice to Mr. Keogh if he is wrongly denied access to relevant documentation is of a different magnitude to the risk of prejudice faced by claimants in civil proceedings. This underscores the importance of not imposing an unduly heavy burden on Mr. Keogh in the particular circumstances of this Application. This is not in any way a decision that Mr. Keogh should or will be permitted to adduce any transcripts from the trial of Mr. McConnell in his Appeal (that would be a matter for the Court of Appeal), but rather that he should not be deprived of the opportunity to review the material and decide whether it is relevant and is material which he wishes to attempt to use in the Appeal.

77. Fourth, the submission that a person convicted of a murder would have an interest in seeing the evidence given in court against a person subsequently convicted of the same murder is a compelling one. It is contended that the transcripts are sought to enable Mr. Keogh to identify discrepancies and inconsistencies in the evidence given, to see whether the prosecution case changed in the intervening period, and to assess any weaknesses that may have emerged in the case following Mr. Keogh’s trial. These do seem like weighty reasons to justify the Application.

78. Fifth, Mr. McConnell’s counsel quite fairly and correctly points to the limited information that is given about the precise use to which the transcripts would be put (other than the specific evidence of Detective Garda Keyes and Ms. McDonnell, which are not a contested part of this

Application). This is simply but convincingly explained by Mr. Keogh’s counsel on the basis that he was not present at the trial of Mr. McConnell and cannot identify the specific issues that arise from the evidence given at that trial. This situation can be contrasted with Breslin, in which Hardiman J. found “as a matter of great probability” ([13]) that the plaintiffs had available information about the use they intended to make of the documentation sought, but chose not to disclose this to the Court. I have no reason to believe the same conclusion falls to be drawn here, and no such suggestion was made by any party to this Application. In short, while there was limited specific information about the use to which the transcripts may be put (or sought to be put) – and it would have been preferable if more detailed reasons were given - I am satisfied that there was a sound reason for this: Mr. Keogh and his legal team did not have the information to have formed a view on these matters. In the very specific circumstances of this case and given the risk of prejudice to Mr. Keogh in the preparation and conduct of his Appeal, I am willing to accept the sufficiency of the explanations given as to why the documentation sought is “necessary for the purpose of doing justice”.

79. Sixth, in any event, the question of whether access has been shown to be “necessary” must be weighed against the risk of “relevant legal prejudice”. In this case, by direct contrast with Breslin, the documentation is not sought for the purpose of being deployed against Mr.

McConnell. While the transcripts will of course include evidence that is damaging to Mr.

McConnell, Hardiman J. has rejected the sufficiency of that form of prejudice as a ground to resist the production of transcripts (even when those transcripts were to be used against the same defendants). In this case, it is said that the purpose of seeking the transcripts is to advance Mr. Keogh’s appeal by finding flaws in the prosecution case. It appears to me that Mr. Keogh has discharged the onus of showing that the disclosure sought is necessary to assist him in advancing his appeal against conviction and that this is not outweighed by any “relevant legal prejudice” to Mr. McConnell. Even though it would have been preferable if there was a more detailed explanation of why the full transcripts of the hearing and the judgment are necessary to do justice, I accept the reasons given for the failure to provide such an explanation, and the absence of “relevant legal prejudice” ensures that the correct balance is nonetheless struck by making the order sought.

80. This leads to the seventh point which is that the primary prejudice alleged by Mr. McConnell is that he would face a security risk if there was now public disclosure of material in the transcripts that was not previously publicised. These safety concerns were expressed in strong terms at the hearing of this Application by counsel for Mr. McConnell and are certainly not to be disregarded. However, the test in Breslin is formulated quite precisely as one of “relevant legal prejudice”. The risk of harm identified on behalf of Mr. McConnell is not “legal prejudice” in the sense contemplated in Breslin. Moreover, the fact that certain information may not have been reported by the media to date is not a reason to deprive Mr. Keogh of the opportunity to review that material and assess whether it is relevant to the fair presentation of his appeal against conviction. I do not regard the risk that information that was presented at the trial in a public forum may be publicised in the future is a legitimate factor to weigh in the balance when exercising the jurisdiction conferred on this Court to direct the production of transcripts. I note the submission made on behalf of Mr. Keogh that reporting restrictions could be sought when Mr. Keogh’s appeal is being heard, as a means of protecting against the risks identified by Mr. McConnell. I make no comment as to the possibility of such orders being made, but would observe that this submission highlights the type of prejudice that is apprehended by Mr. McConnell, which is a reporting issue rather than an issue of legal prejudice, and the type of orders that may be appropriate to deal with it.

CONCLUSIONS

81. I am satisfied that, when the various factors and considerations are balanced against each other, Mr. Keogh has sufficiently discharged the onus on him of showing that it is “necessary for the purpose of doing justice” that the Special Criminal Court should provide him with access to the transcripts of the trial of Mr. McConnell and of the judgment of the Special Criminal Court and that “no relevant legal prejudice” would be caused to Mr. McConnell by the making of the order sought such as would outweigh the necessity of disclosure.

82. An undertaking was offered on behalf of Mr. Keogh at the hearing of the Application to ensure the transcripts would be used solely for the purposes of his Appeal and not be shared more widely than is necessary. While there is no automatic implied undertaking here such as that which applies in a discovery application, I can see the merit of ensuring protections are in place to limit access to the transcripts given the particular circumstances of this case.

83. I will hear any submissions the parties may wish to make as to the appropriate formulation of this undertaking, the costs of this Application and the costs of providing access to the transcripts.

84. This case will be listed before me at 10am on 10 October 2025 for the purpose of dealing with these matters and making final orders.