Supreme Court dismisses appeal on extradition stay and document production in Ireland. Extradition Act 1965

THE SUPREME COURT

Appeal No. 424/04

Murray C.J.

Denham J.

Geoghegan J

Between

Shane Egan

Plaintiff/Appellant

and

Patrick O’Toole

Defendant/Respondent

Judgment delivered on the 29th day of July, 2005 by Denham J.

1. This is an appeal by Shane Egan, the plaintiff/appellant, hereinafter referred to as the plaintiff, from the judgment and order of the

High Court (Kelly J.) delivered on the 15th day of June, 2004. Patrick O’Toole, Assistant Commissioner of An Garda Síochána, being the

person who endorsed the warrant, is named as the defendant/respondent in his official capacity.

2. The plaintiff and Desmond Guerins are alleged to have conspired dishonestly to obtain money transfers by deception by allegedly

making false representations that certain companies would provide training in England for which they obtained or attempted to obtain

government grants.

3. It is alleged that the offences took place between 18th day of December, 1996 and the 22nd day of January, 1999.

4. A warrant for the arrest of the plaintiff was issued by the authorities in the requesting state on the 10th day of December, 1999,

and that warrant was received by the Garda Síochána on or about the 17th day of December, 1999. On the 8th day of June, 2000

the Attorney General (pursuant to his powers under s.44 of the Extradition Act, 1965, as amended) declined to intervene to prevent

the rendition, and on the 21st of June, 2000 the Minister for Justice, Equality and Law Reform indicated his intention not to intervene.

The warrant was endorsed by the defendant, Patrick O’Toole, Assistant Commissioner of the Garda Síochána, on the 11th day of July,

2000. The plaintiff was arrested on the 21st day of December, 2000.

5. On the 30th day of July, 2001, the District Court ordered the delivery of the plaintiff into the hands of the Devon and Cornwall

police.

6. The plaintiff has appealed the decision of the District Court to the High Court pursuant to s.50 of the Extradition Act, 1965, as

amended, and in particular s.50(2) (bbb), on the grounds:

(a) That the offence specified in the warrant does not correspond with any offence under the law in the State which is an indictable

offence or is punishable on summary conviction by imprisonment for a maximum of at least six months;

(b) That by reason of the lapse of time since the alleged commission of the offence specified in the warrant, and the other

exceptional circumstances set forth in the affidavit of the plaintiff, that it would, having regard to all the circumstances, be unjust,

oppressive or invidious to deliver him up in accordance with the order of the learned Judge of the District Court.

7. However, this is not an appeal on that application. This is an appeal from a decision of the High Court in relation to reliefs sought

by the plaintiff by way of a Notice of Motion.

8. By Notice of Motion the plaintiff sought the following reliefs:

(i) An Order restraining the defendant from taking any further step in these proceedings until such time as those documents

referred to in a request by the plaintiff to the Devon and Cornwall Constabulary dated 15th February, 2002, or an account of

any such documents production of which is properly objected to or impossible, are furnished to the plaintiff or his solicitors.

(ii) An Order disallowing the defendant’s objection to producing the following documents:

(a) the documents in Schedule One, Part Two, Section Two, of the Affidavit of Discovery sworn by Christopher Doyle on

the defendant’s behalf on the 28th May, 2003;

(b) the documents in Schedule One, Part Two, of the Affidavit of Discovery sworn by Michael Heffernan on the

defendant’s behalf on 4th June, 2003 and requiring the defendant to produce them for the Plaintiff’s inspection;

(iii) Further or in the alternative, an Order requiring the defendant to produce those documents for the inspection of this

Honourable Court, and its determination whether the objections maintained by the defendant to producing these documents for

the plaintiff’s inspection are valid.

(iv) An Order debarring the defendant from relying on the Affidavit of Peter Kilpatrick sworn herein on 29th June, 2002, unless

the following documents referred to therein are furnished to the plaintiff:

(a) Statements of complaint in relation to the allegation against the plaintiff taken in 1998;

(b) Papers sent by the Plymouth Branch of the Crown Prosecution Service to the Crown Prosecution Service Casework

Directorate;

(c) An information on Oath laid by Detective-Constable Kilpatrick.

(v) Such further or other order as may to this Honourable Court seem meet and just.

(vi) An Order providing the costs of this application.

9. The High Court gave an ex tempore ruling on the 15th day of June, 2004.

10. Against that order the plaintiff has appealed to this Court on the following grounds:

(i) That the learned Judge of the High Court erred in law in ruling that the Court’s power to restrain a party from taking a step in

proceedings until that party had obtained documents from a non-party and made them available to another party to the

proceedings did not extend to permitting the Court to restrain the State or its representative (such as the

Defendant/Respondent) from taking any further step to defend proceedings under Section 50 of the Extradition Act, 1965, as

amended, until it obtained from the requesting State under that Act documents sought by the plaintiff in the Section 50

proceedings in support of his claim therein:

(ii) That the learned Judge of the High Court erred in law in failing to apply by analogy the decision of this Honourable Court by

which it has been held that the claim of a plaintiff in personal injuries proceedings may be stayed until he has submitted to a

medical examination by the defendant’s experts; and has furnished the defendant or his experts with sufficient information to

enable a meaningful examination to take place:

(iii) That the learned Judge of the High Court erred in law in supposing that that decision could be distinguished by reason of

the difference in facts between it and this case and/or that it could be distinguished in principle:

(iv) That the learned Judge of the High Court erred in law in ruling that for the Court to restrain a party from taking a step in

proceedings until that party had obtained documents from a non-party and made them available to another party the party to

be restrained would have to be the agent stricto sensu of the non-party:

(v) That the learned Judge of the High Court erred in law, or in a mixed question of fact and law, in his balancing of the public

interest in the due administration of justice against such public interest as was asserted by the Defendant/Respondent to

justify his withholding the documents sought at Paragraph 2 of the Notice of Motion f 16th October, 2003, herein, and failed to

give sufficient weight to that aspect of the public interest which favoured disclosure:

(vi) That the learned Judge of the High Court erred in law, or in a mixed question of fact and law, in that he allowed general

considerations of confidentiality asserted by the defendant to prevail over the plaintiff’s entitlement to inspection of documents

the relevance of which was conceded by the defendant, and sustained the defendant’s claim to withhold the documents in the

public interest by reason of the class of documents to which they belonged without identifying any particular damage to the

public interest which would be occasioned by the production of the particular documents in this case:

(vii) That the learned Judge of the high Court erred in law, or in a mixed question of fact and law, in relying on the assertion in

the affidavit of Christopher Doyle sworn on the defendant’s behalf on 4th June, 2004, that he had spoken to an officer in the

office of the Attorney General for England and Wales, and that it has been confirmed to Mr. Doyle that the Attorney General of

England and Wales had sent certain documents described therein to the Office of the Attorney General on a confidential basis

and on the understanding that such documents would not be disclosed to any third parties, in the circumstances where no

sufficient grounds why it was vital that the confidentiality of those documents be maintained in the public interest were

deposed to, and when the plaintiff should not, in any event, have been regarded as a third party for the purpose of disclosure;

(viii) That the learned Judge of the High Court erred in law in ruling that the various documents specified above and referred to

in the affidavit of Detective-Constable Fitzpatrick were not liable to disclosure in accordance with Order 31, Rule 18, of the

Rules of the Superior Courts:

(ix) In particular, and without prejudice to the generality of the next preceding paragraph, that the learned Judge of the High

Court erred in law, or in a mixed question of fact and law, in relying for the purposes of such refusal on an assertion in argument

of confidentiality regarding those documents which was not supported by sworn evidence and/or inconsistent with reference

having been made to them in an Affidavit field on the defendant’s behalf, and further so erred as regards the sworn Information

sought under this heading on the assertion that such a document would not be made available to an accused in certain types

of proceedings in the United Kingdom:

(x) That the learned Judge of the High Court erred in law or upon a mixed question of fact and law in refusing to grant the

reliefs sought.

11. The appeal proceeded on two matters essentially: (a) the request for a stay, and (b) the request for the production of

documents. Thus first, there is the matter of the order seeking to stay the proceedings pending the production of documents referred

to in the request by the plaintiff (to the Devon and Cornwall constabulary on the 15th February 2002). Secondly, there is the issue of

the production of documents. As the learned trail judge pointed out, the six requests for documents in the letter of the 15th day of

February, 2002 were as follows:

1. All records of the invitation allegedly made by the Department for Education and Employment to the plaintiff to a meeting in

the Copthorne Hotel, Plymouth, on 21st January, 1999.

2. Such communications between the Gardai and the Devon and Cornwall Constabulary as justify Detective-Constable

Kilpatrick’s assertion at Paragraph 7 of his Affidavit that attempts were made by the Gardaí to execute the warrant for Mr.

Egan’s arrest referred to above.

3. (a) All documents in relation to the strategy adopted by the Deon and Cornwall Police in relation to the execution of that

warrant.

(b) All communications or records thereof between the Devon and Cornwall Police and the Gardaí in relation to the execution of

the warrant.

4. All documents in relation to any attempt by Devon and Cornwall Constabulary to arrange for the plaintiff to go to the United

Kingdom voluntarily, and to the delay between 21st January, 1999, and 10th December, 1999, by them in seeking a warrant for

his arrest.

5 All the documents in relation to:

(a) Such information as the Devon and Cornwall Constabulary had in relation to the plaintiff’s whereabouts at any time

material to these proceedings;

(b) Any efforts made by the Devon and Cornwall Constabulary to locate the plaintiff in Luxembourg between their

obtaining the warrant for the plaintiff’s arrest on 10th December, 1999, and the Plaintiff’s arrest on 21st December, 2000;

and

(c) Any decision not to seek to locate him.

6. The following documents referred to in Detective Constable Kilpatrick’s Affidavit.

(a) The Statements of Complaint referred to at Paragraph 3;

(b) The papers sent to the Plymouth Branch of the Crown Prosecution Service referred to at Paragraph 6;

(c) The Information on Oath referred to at Paragraph 6.

12.1 The Stay

The learned trial Judge stated that the application for a stay was based on the inherent jurisdiction of the Court to stay proceedings

where justice so requires. Reliance was placed on McGrory v Electricity Supply Board, [2003] 3 I.R. 407, where Keane C.J., held that:

“I have no doubt that the courts enjoy an inherent jurisdiction to stay proceedings where justice so requires and that it should

be exercised in cases where the plaintiff refuses to submit to a medical examination or to disclose his medical records to the

defendant or to permit the defendant to interview his treating doctors”.

The court does have an inherent jurisdiction to stay proceedings in the interest of justice. However, the facts and law in McGrory v

Electricity Supply Board are entirely different from the circumstances in this case and I would distinguish that case from the matter at

issue on this motion. I affirm the findings of the High Court on this ground. Substantive personal injuries proceedings, where the issue

of the health of the plaintiff is at the core of the case, are entirely different from these rendition proceedings, pursuant to the

Extradition Act, 1965, as amended. The sui geneus proceedings under the Extradition Act, 1965, as amended, enabled rendition

between Ireland and England and Wales, once the formalities of the Act had been met. The substantive (criminal) proceedings occur

in the requesting State. The jurisdiction of the courts, subject to constitutional rights, under the Extradition Act, 1965, was limited to

meeting the requirements set out in the Act, e.g. that it was a corresponding offence, that the documents were in order, etc. I would

distinguish the McGrory case from the circumstances of this case and hold that the principle therein is not applicable in the

circumstances of this case.

12.2 The High Court referred to the fact that the plaintiff relied on Willis & Co. v Baddeley [1892] 2 Q.B 324 as applied in Abu Dhabi

National Tanker Co. v Product Star Shipping [1992] 2 ALL E.R 20. The principle was stated by Lord Esher, as follows:

“I am prepared to decide that where it made known to the Court that there is a foreign principal residing abroad who is the real

plaintiff in the action and is only suing through his agent here, and that the agent was dealt with by the other side as agent

and not as principal, then, in order to prevent palpable injustice, the Court by reason of its inherent jurisdiction will insist that

the real plaintiff shall do all that he ought to do for the purpose of justice as if his name were on the record”

As pointed out by the learned trial judge that decision was followed by the Queen’s Bench Division in Ireland in Compagnia Naviera

Vascongada v R. & H. Hall Ltd (No.2) (1906) 40 I.L.T.R. 246. In that case, Andrews J. said:

“The power to do this arises from the inherent jurisdiction of the Court. We are satisfied here on the evidence before us that

the defendants in the present action are merely defendants for or on behalf of the Antwerp Company. They represent them in

every respect, whether you call it subrogation or trust or something else. Therefore we think that the person who is the nominal

party cannot shelter the real party who, if he appeared as a party, would have been compelled as of right to make an affidavit

of discovery.”

I am satisfied that the above case law has no application to the circumstances on this motion. The learned High Court Judge was

correct to hold that these proceedings are not the equivalent of shadow litigation such as in the cases cited. In this case the Court is

considering the situation where Ireland and England and Wales had a system of rendition, of the backing of the warrants of the other

jurisdiction. This procedure arose because of an agreement entered into by the two sovereign governments. The agreement was

brought into the domestic law of Ireland by the Extradition Act, 1965, Part II, as amended. By such legislative scheme warrants could

be backed in Ireland, as by the defendant in this case, and, following the procedures set out in the Act, the requested person may be

delivered to the requesting authorities. Subject to specific issues set out in the Irish legislation, e.g. correspondence, identity,

documents being in order, the person was rendered to the requesting state for criminal proceedings in that jurisdiction. Applications

pursuant to Part II of the Act of 1965 are made by the Irish authorities, on the direction or advice of the Attorney General, once the

appropriate statutory requirements have been met. Such applications are not made as agents of any other party. It is an entirely

different situation from the case law submitted above. A foreign State, such as the United Kingdom, or any part of it, is not a

principal in such proceedings. Ireland is not an agent. Rendition is a sui geneus procedure to which the above cited cases do not

apply. I would affirm the decision of the High Court that this common law principle should not be extended to rendition proceedings.

Consequently, I would affirm the decision of the learned trial judge on the first paragraph of the Notice of Motion, and dismiss the

appeal on this ground.

13. Production of Documents

The fourth relief sough on the Notice of Motion was:

“An Order debarring the defendant from relying on the Affidavit of Peter Kilpatrick sworn herein on 29th January, 2002 unless

the following documents referred to therein are furnished to the plaintiff:

(a) Statements of complaint in relation to the allegation against the plaintiff taken in 1998.

(b) Papers sent by the Plymouth Branch of the Crown Prosecution Service to the Crown Prosecution Service Casework

Directorate;

(c) An information on Oath laid by Detective-Constable Kilpatrick.”

For this aspect of the motion the plaintiff relied on Order 31, r.15 and r. 18 of the Rules of the Superior Courts. The documents were

referred to in the affidavit of Peter Kilpatrick which affidavit he swore in his capacity as a Detective Constable of the Devon and

Cornwall Constabulary attached to the fraud squad in Devonport Police Station, Plymouth. In the affidavit Detective Constable

Kilpatrick deposed that the purpose of the affidavit was to deal with the background to the plaintiff’s extradition being sought. At

paragraph 3 he deposed:

“3. Statements of complaint in relation to the present allegation against the plaintiff and Desmond Guerins were taken and the

matter investigated during 1998. The plaintiff and Mr. Guerins were invited by the Department of Education and Employment to

a meeting in the Copthorne Hotel, Plymouth on January 21st 1999 to discuss issues in relation to submitted accounts and to

claim an instalment of their grant from that Department. Desmond Guerins attended this meeting alone identifying himself as a

Mr. Walker. I arrested him in relation to the present allegations at the conclusion of that meeting.

4. I say that Desmond Guerins was thereafter interviewed and on the 21st January and the 26th February 1999 was subsequently

charged with the offence as set out at Warrant A and which is exhibited at SE1 herein. Desmond Guerins was committed for trial in

relation to this matter to the Plymouth Crown Court on the 28th April 1999. He is currently on conditional bail to that Court and it is

intended, should the plaintiff be extradited to England from Ireland, that he would be tried with the plaintiff in respect of this

offence.”

The information referred to in paragraph (iv) (c) of the Notice of Motion is referred to in paragraph 6 of the affidavit of Mr. Kilpatrick

as follows:

“On the 28th October, 1999 papers were sent by the Plymouth Branch of the Crown Prosecution Service to the Crown

Prosecution Service casework directorate. This is the section of the Crown Prosecution Services responsible for the preparation

of requests for extradition from Ireland and the request was duly processed there. Following the laying by me of information in

writing on oath, a warrant for the arrest of the Applicant was issue by the Plymouth Magistrates Court on the 10th December

1999. A copy of the said warrant and accompanying documentation are set out at “Exhibit SE1” herein.

The affidavit then went on to deal with attempts to execute the warrant.

14. Time since the commission of the offence

In considering this aspect of the application the learned High Court Judge referred to submissions of the defendant that the

documents are not relevant and that only documents subsequent to the date of the warrant can be relevant. The High Court Judge

disagreed with that submission and held that s.50 (2) (bbb) of the Extradition Act, 1965 as amended referred to ‘the lapse of time

since the commission of the offence’. He held that the documents cannot be irrelevant on that basis.

I agree that issues arising on s.50 (2) (bbb) may relate back to the time of the commission of the offence specified in the warrant.

Thus, I would affirm the decision of the High Court that documents may not be deemed irrelevant solely on the ground that they are

dated prior to the warrant.

In so determining I wish to make it clear that it is not for this Court, at this time, to consider the substantive issue of the lapse of

time submitted under s.50 (2) (bbb). Before the Court is the appeal on the motion, not an appeal on the s.50 (2) (bbb) grounds.

The disclosure of the documents referred to in paragraph (iv) of the Notice of Motion was objected to by the police authorities in the

requesting state on the grounds also that they were confidential documents. On this aspect of the motion the learned High Court

Judge held:

“The present case is concerned with confidentiality and whether the reasons for deploying the document came within the terms

of Order 31, rule 15. I am satisfied that the documents were not deployed and that they were merely referred to in the

narrative, which does not bring them within the scope of Order 31, rule 15, not least when confidentiality is claimed and

maintained by the Devon and Cornwall Police.”

He gave a further reason for refusing the document as follows:

“A further reason for refusing disclosure of the information referred to in paragraph 4(c) of the Notice of Motion is that there is

no entitlement to such a document in England and reference is made in the Affidavit of Michael Heffernan dated the 11th June

2004 at paragraph 6 to the judgment of the High Court of England and Wales in R v Ailesbury Justices ex parte Wisbey [1965] 1

All E.R. 602. It would be anomalous if the plaintiff were entitled to production of such a document in this jurisdiction when it

was not open to him to demand its inspection in England, although the position might have been different had the defendant

deployed the documents in these proceedings.”

The High Court then refused disclosure of the documents sought in paragraph (iv) of the Notion of Motion.

I would affirm this decision. There was a reasoned basis to the decision of the High Court. In the context of these rendition

proceedings the documents are not such as are required to be produced. Further, in the exercise of his discretion, reference by the

learned trial judge both to the issue of confidentiality and the absence of entitlement to the document in England, are relevant

factors which were within his jurisdiction to consider. I find no reason requiring intervention in this determination.

15. Privilege

The issue of privilege was also considered, on this motion, by the High Court. Discovery had been sought by the plaintiff and made by

the defendant. On this motion the plaintiff sought to have certain objections to inspection of documents disclosed disallowed.

In paragraph (ii) (a) of the Notice of Motion the plaintiff sought:

“An Order disallowing the defendant’s objection to producing the following documents:

(a) The documents in Schedule One, Part two, Section two of the Affidavit of Discovery sworn by Christopher Doyle on

the defendant’s behalf on the 28th May 2003.

These documents are:

1. Statement of Law and Statement of Facts from the Attorney General for England and Wales 17th December, 1999.

2. Letter to Attorney General’s office from office of the Attorney General for England and Wales 11th April, 2000.

3. Letter from office of the Attorney General for England and Wales to Attorney General’s office 10th July, 2000.

4. Letter from Attorney General’s office to office of Attorney General for England and Wales 13th July, 2000.

5. Letter office of the Attorney General for England and Wales to Office Attorney General 3rd August, 2000.

On behalf of the defendant it was submitted that these were confidential communications between sovereign states and that the

documents were confidential communications brought into being after litigation was contemplated. The documents were listed in

affidavits of Christopher Doyle who is described as Advisory Counsel in the office of the Attorney General of Ireland and the person

having charge of the file in relation to this request for rendition. Objection was taken to the production of the documents in paragraph

6 of Mr. Doyle’s affidavit, dated the 28th day of May, 2003, as follows:

“In relation to the documents listed in Part 2 Section 2 of the First Schedule objection to their production is made on the

grounds that they are confidential communications between sovereign States, or between the legal officers of such States, for

the purpose of seeking the extradition of the plaintiff and it is in the public interest that their production should not be ordered

or they are confidential documents created after litigation, namely proceedings seeking the extradition of the plaintiff, where

contemplated and for the dominant purpose thereof.”

In his affidavit dated 4th June, 2004 Mr. Doyle gave further reasons for the non-production of the documents as follows:

“3. The documents listed are documents which were provided by the Attorney General of England and Wales to the Attorney

General of this State for the limited purpose of allowing the Attorney General decide whether to back warrants sent seeking the

extradition of the plaintiff to the United Kingdom. The Attorney General is by virtue of Section 44A of the Extradition Act, 1965

(as amended) conferred with a specific statutory function concerning the indorsement of warrants seeking the extradition of a

person to countries to which Part III of the Extradition Act, 1965 applies. Part III of the said Act applies to the present

application and it was therefore the function of the Attorney General to exercise the statutory function conferred upon him

under Section 44A of the said Act prior to the endorsement of the warrant seeking the extradition of the plaintiff.

4. I further say that the documents listed were ones sent to the Attorney General by the Attorney General of England and

Wales, and a document in reply to one such document, where the extradition of the plaintiff to that State was being sought

and for the specific purpose of enabling the Attorney General to exercise his statutory functions under Section 44A of the

Extradition Act, 1965.

5. Where the Attorney General of England and Wales seeks the extradition of a person accused of offences to that part of the

United Kingdom, he is exercising and has always been understood to be exercising a power and function of a sovereign State

namely the United Kingdom. The seeking of the co-operation of this State in securing the arrest and return of a person to stand

trial on criminal charges in any part of the United Kingdom is sought pursuant to an arrangement between two sovereign States

namely the United Kingdom and this State. It has always been understood that documentation received from the Attorney

General of England and Wales in the exercise by him of his sovereign function has been received by Attorney General in strict

confidence. In the light of this understanding, and indeed the expectation and understanding of the Attorney General that

documents sent by him to the Attorney General of England and Wales would similarly attract an obligation of confidentiality, it

has always been the policy of successive Attorney Generals that such documents are received in the strictest confidence.

6. In this regard I further say that I have spoken to an officer in the Office of the UK Attorney General and it has been

confirmed in the said conversation that the Attorney General of England and Wales sent the documents listed in Part 2 Section

2 on a confidential basis and on the understanding that such documents would be disclosed to any third parties.

7. I say that there is therefore a public interest in the non-production of theses documents as they are documents passing

between sovereign States on a confidential basis. I say that the public interest in the non-production of these documents, as

identified in this affidavit and my previous affidavit, outweighs any interest in their disclosure in the interest of the fair disposal

of these proceedings.”

The learned High Court Judge refereed to W v Ireland (No.1) [1997] 2 I.R. 132. He pointed out that the defendant in these

proceedings had placed reliance on objections in rather similar terms to those in W v Ireland (No.1). In particular reliance was placed

on s.44 and s.44A of the Extradition Act, 1965, as amended, and on the assertion that the documents were furnished on the

assumption that they would remain confidential. In W v Ireland (No.1) Geoghegan J held that, having regard to the provisions of the

Constitution, there was a very strong case for not countenancing any form of absolute privilege in relation to communications passing

between sovereign States. However, that documents connected with an extradition request would be assumed by both states to be

confidential and that there was a public interest in the State as far as possible maintaining that confidentiality. However, on the facts

of that case he concluded that the public interest favoured disclosure; stating:

“However, on the particular facts of this case I have to balance that interest against the public interest in all relevant evidence

being before the court for the purpose of the litigation. It would have been impossible for me to determine that issue without

looking at the documents, and I have now read them. Having done so, I have come to the conclusion that on balancing the two

public interests, I should come down in favour of disclosure. In arriving at this view, I have attached importance (inter alia) to

the following factors:-

1. The criminal proceeding to which the action relates has long been disposed of.

2. The onus of establishing that there is a greater public interest in non-disclosure is on the State, but that onus does

not appear to me to have been discharged. The mere assertion that confidentiality would normally be expected is not

sufficient.

3. There is no evidence before this court, either direct or even of a hearsay nature, that there is a concrete present

objection by the office of the Attorney-General of Northern Ireland to the production of these documents in this action.

4. While it would be understandable that both this State and the United Kingdom would want as a matter of principle to

maintain a rule of confidentiality in relation to such documentation, it is difficult to see any particular reason why the

United Kingdom government would be concerned about the production of the particular documents now sought to be

produced in this case.”

The learned trial judge in this case held:

“It seems to me from an inspection of the documents in this case that there is little of relevance in them. However there are

two features which differentiate this case from the W. case. First, in W. the criminal proceedings against the person whose

extradition had been sought had long been disposed of. Here, the plaintiff and Desmond Guerins are awaiting trial. This puts a

substantially different colour on the exercise of my discretion. Secondly, in W. there was no evidence of a specific objection by

the United Kingdom authorities. In the affidavit of Christopher Doyle there is such an objection in that the documents were of a

confidential nature and that the understanding was that such confidentiality would be maintained. This causes the balance of

the public interest to be recalibrated, and I uphold the claim to privilege in respect of these documents.”

Having had the opportunity of inspecting the documents before Kelly J. I would uphold his finding and the reasons given. I would

endorse his approach and analysis. In determining whether or not to order production of communications which were claimed to be

privileged the court must balance the public interest in maintaining the confidentiality of documents furnished in the extradition

request against the public interest in all the relevant evidence being before the court for the purposes of litigation. In carrying out

this balancing act it may be necessary for the court to inspect the documents in issue. In W the relevant factors considered by the

learned trial judge were:

(a) that the criminal proceedings to which the action related had long been disposed of;

(b) that the onus was on the State to establish that there was a greater public interest in non-disclosure and that the onus

had not been discharged, mere assertion of confidentiality was not enough; and

(c) that there was no evidence before the court that the office of the Attorney General of Northern Ireland objected to the

production of the communications sought to be disclosed in this particular action and there seemed to be no reason why he

should object.

In contrast, is this case:

(a) the criminal proceedings, to which the documents relate, have not yet taken place;

(b) the State had addressed the issue of public interest and did not merely assert confidentiality; and

(c) there was evidence of objection to the production of the documents.

Consequently, the facts are substantially different to those of W. I would affirm the decision of the High Court.

The learned trial judge referred to further affidavits of Sergeant Heffernan sworn on behalf of the defendant. In Paragraph 2(b) of the

Notice of Motion the plaintiff sought:

“2. An Order disallowing the defendant’s objection to produce the following documents:

(b) the documents in Schedule One, Part two, of the Affidavit of Discovery sworn by Michael Heffernan on the

defendant’s behalf on the 4th June 2003 and requiring the defendant to produce them for the plaintiff’s inspection.”

The learned High Court Judge pointed out that the plaintiff contested the objection taken to producing for his inspection the

documents listed in Part II of the First Schedule to the first of these affidavits, namely:

Section 1

1. Letter to Gardaí from Devon and Cornwall Police enclosing Warrant and accompanying documentation 10th December, 1999.

2. Letter and accompanying documentation from Devon and Cornwall Police to Gardaí dated 14th January, 2000.

3. Facsimile message from Devon and Cornwall Police to Gardaí 11th July, 2000.

4. Letter and accompanying documentation from Devon and Cornwall Police to Gardaí 1st September, 2000.

Section 2

1. Activity Report 10th December, 1999.

2. Letter from office of the Attorney General to Garda Commissioner 8th June, 2000.

3. Activity Report 19th June, 2000.

4. Letter from Chief Superintendent Cregg to Secretary General of Department of Justice 20th June, 2000.

5. Letter from Department of Justice to Garda Commissioner 21st June, 2000.

In a further affidavit of Michael Heffernan dated the 11th day of June, 2004 objection was taken to a further document being:

“1. Letter and enclosures from Devon and Cornwall Police 22nd or 26th June, 2000.”

As to these documents the High Court held:

“In respect of the documents contained in Section 1 of Part II of the First Schedule to Sergeant Heffernan’s first Affidavit of

Discovery, objection is taken to production of those documents on the grounds that they are confidential communications

between members of An Garda Síochána and Devon and Cornwall Constabulary for the purposes of seeking the extradition of the

plaintiff and that there is a public interest in withholding the production of the said communications on the grounds that they

are confidential communications that have passed between sovereign States and their production should not be ordered.

Further, in paragraph 6 of his first Affidavit, Detective-Sergeant Heffernan objects to producing the documents listed in Section

2 of Part II of the First Schedule on the grounds that they are confidential communications of a professional nature between

the Defendant, the Minister for Justice or An Garda Síochána, on the one hand, and their legal adviser, on the other, for the

purpose of seeking and providing legal advice, or confidential communications entered into between the defendant’s legal

advisors with third persons, after litigation was contemplated, for the dominant purpose of enabling legal advisers to advise with

regard to, or of getting up evidence for use in, that litigation, or other documents created after litigation was contemplated for

the dominant purpose thereof.

The second Affidavit of Michael Heffernan sworn recently recites an objection by the Devon and Cornwall Police in respect of:

(a) The letter and enclosures from Devon and Cornwall Police dated 22nd June, 2000.

(b) The facsimile message from Devon and Cornwall Police to the Gardaí dated 11th July, 2000, and

(c) The letter and accompanying documentation from Devon and Cornwall Police to the Gardaí dated 1st August, 2000:

on the grounds that they concern operational police matters. Document (a) was said to contain firstly confidential

information obtained as a result of police inquiries in the United Kingdom, and secondly a summary of evidence or file

summary prepared by the Devon and Cornwall Police, both made in the course of the criminal investigation into suspected

criminal activity by the plaintiff and in relation to which extradition is now sought. The affidavit further deposed that

criminal proceedings against Desmond Guerins in relation to these matters have not yet concluded in the Crown Court.

Finally, Sergeant Heffernan swore that included in the documents dated 1st August, 2000 is information which the Devon

and Cornwall Police had indicated was disclosed in confidence to them in the course of their investigation in this case.

The Court has already adverted to the sworn information laid before the Plymouth Magistrates at an earlier stage of this

judgment, and to the statutory functions of the Minister for Justice and the Attorney General under ss.44 and 44A of the

Extradition Act, 1965, as amended, on which the defendant relies.

The Court is satisfied that none of these documents is protected by legal professional privilege. There is no request for, nor any

proffer of, legal advice in any of them. Some of the documents do relate to operational police matters. I must conduct a similar

balancing exercise in respect of these documents as I have already done in respect of the documents discovered in Christopher

Doyle’s affidavit.

The Devon and Cornwall Police obtained confidential information and are engaged in the ongoing protection of Desmond Guerins. On

the exercise of the Court’s balancing function regarding the public interest, the plaintiff is entitled to inspect all documents in Section

2 of Part II of the First Schedule to Detective-Sergeant Heffernan’s first affidavit; that is, documents 2, 4, and 5 in that section, the

objection already having been withdrawn regarding documents 1 and 3. The defendant also at the hearing of the Motion withdrew his

objection to producing document 2 in Section 1 Part II of the said First Schedule. However, the Plaintiff has not shown that on

balance the public interest favours production of the remaining documents production of which was objected to by Detective-

Sergeant Heffernan.”

On reviewing the documents and considering the balancing exercise conducted by the learned trial judge I see no grounds to

intervene in his decision. Consequently I would affirm this aspect of the judgment of the High Court also.

Decision

The decision on this appeal relates solely to the issues raised on the Notice of Motion, being the request for a stay and the

production of documents. For the reasons given, I would affirm the decision of the High Court.

Conclusion

It appears to me that this motion was a fishing expedition. The request for a stay in the circumstances was inappropriate. While there

may well be circumstances where due process and fairness would require a Court to grant a stay to protect justice, that is not the

situation in this case.

Further, the documents sought which have not been produced were not ‘deployed’ in the proceedings and so privilege was not

waived: Hannigan v Director of Public Prosecutions [2001] 1 LR 378.

In conclusion I would dismiss the appeal and affirm the order of the High Court.