IESC 43 · Supreme Court

[2008] IESC 43

THE SUPREME COURT

110, 112, 117 and 118/08

Murray C.J

Hardiman J.

Geoghegan J.

Between:

BRESLIN and ORS.

Plaintiffs/Respondents

and

McKENNA and ORS.

Defendants/Appellants

JUDGMENT of Mr. Justice Hardiman delivered the 16th day of July, 2008.

1. The background, procedural and otherwise, to this case has been sufficiently summarised in the judgment about to be delivered by

Mr. Justice Geoghegan and I gratefully adopt it. I am also in agreement with the principles of law enunciated by Mr. Justice

Geoghegan in his judgment. I am not, however, in agreement with the order proposed because I do not think the

plaintiffs/respondents have established a sufficient factual case to allow the principles I have referred to, and will discuss further

below, to be properly applied in the circumstance of this case.

2. I wish to refer to the principles enunciated in particular at p.17 of Mr. Justice Geoghegan’s judgment, which emerged to some

extent from an analysis of the judgment of O’Hanlon J. in Kelly v. Ireland [1986] ILRM 318. Referring to a transcript of proceedings

before the Special Criminal Court O’Hanlon J. said, in the latter case:

“I have no doubt that where it is necessary for the purpose of doing justice in a case involving litigation between

contesting parties, an extract from the transcript of the proceedings before that Court would be made available, or its

production could be compelled should it become necessary to do so”.

3. I agree with this. I also agree with the immediately following statement of Geoghegan J:

“In my view, there is no prohibition on the handing over of transcripts for production for inspection purposes with the

permission of the High Court, if it is necessary for the purpose of doing justice and provided there is no relevant legal

prejudice to the other party as a consequence of doing so. Where the proceeding in which the production is required is in

another jurisdiction, the Courts of this jurisdiction should accept any finding by that Court that the documents are

necessary unless there is any reason to believe that for some reason or other the handing over of the documents could

lead to a fundamental injustice”.

4. I also wish specifically to express my agreement with Geoghegan J’s statement, later on p.17:

“In my view, this Court should accept that a fair trial will be conducted by the High Court of Northern Ireland”.

5. Geoghegan J. went on to say:

“I see no reason why this Court should not, as a matter of discretion, permit both the relevant Books of Evidence and the

relevant transcripts to be produced in accordance with the orders made by the High Court and Court of Appeal in

Northern Ireland”.

6. The point on which I very respectfully differ from Geoghegan is precisely in relation to the exercise of a discretion. In my view, the

plaintiffs/respondents have not put before the Court any information remotely sufficient to permit the proper exercise of discretion. It

must be said that the defendants/appellants have not themselves urged this point in any very emphatic or methodical way but of

course the entire onus of proof is, at least initially, on their opponents, who alone know what they intend to do with the documents if

disclosed. Without this information it is difficult or impossible to show whether or not “relevant legal prejudice” will be caused to the

defendants. As it was, the plaintiffs’ case was so minimally and vaguely presented as to make rebuttal, or the demonstration of

prejudice, very difficult.

7. Counsel for the plaintiffs/respondents on the hearing of this appeal adopted what can only be described as a “know nothing”

attitude. They knew nothing of the law of Northern Ireland or of the United Kingdom as to the use which might be made of the

material sought, or whether it could be produced as evidence and if so what its status might be. They knew nothing of their clients’

intentions in relation to the material in question. They were not merely unable to put any material of this sort before the Court on the

hearing of this appeal, but they stated that it was unnecessary to do so. Since the Court gave its ex tempore judgment on the 4th

of April 2008, the civil proceedings in Northern Ireland have commenced and have proceeded for a very considerable time: it would

not be proper to make use in this judgment of any information which one (like any newspaper reader) might have gleaned, after the

hearing of this appeal, as to the use actually made of the relevant material. But it is evident that any consideration as to its

evidential status in the Northern Ireland proceedings and the use intended, if possible, to be made of it, was clearly not discussed

with those appearing for the plaintiffs/respondents in this jurisdiction and did not form part of their instructions. But since the hearing

of the appeal took place within days of the commencement of the proceedings it is evident that proofs must have been advised and

some view taken of the planned or possible use of the material in question here.

8. In the absence of evidence of this sort I do not find it possible to be satisfied that there is “no relevant legal prejudice” to the

other party, in the words of Geoghegan J. I consider that this Court, which has an intimate knowledge of material of the sort in issue

here, should have been informed what was proposed to be done with it.

9. The “Book of Evidence” is a compendium of the documents required by our law to be served on an accused person pursuant to the

Criminal Procedure Act, 1967. The bulk of this compendium is usually the statements of proposed evidence of witnesses and,

sometimes, exhibited documents. Those who deal constantly with such documents in this jurisdiction have learnt not to presume on

the accuracy, credibility or admissibility of what they contain. They are entirely prosecution documents with no input from the

accused at all except insofar as an accused person may have made statements which the prosecution decides to use. Such

statements, when alleged, are often hotly disputed. Plainly inadmissible material is not infrequently found in such statements of

proposed evidence. I would not, without the consent of the defendants/appellants, facilitate or compel their production without

knowing the purpose for which they were required and the use to which they were proposed to be put. Depending on the

circumstances of the individual case one could imagine gross prejudice occurring.

10. The transcript of the evidence of witnesses for the prosecution is, of course, quite properly likely to contain material prejudicial to

the defendants. And that fact alone, obviously, cannot be a reason for its non-production. The main evidence in this case, that of an

FBI undercover informer is of a most unusual kind. I would require to know the use to which it was intended to be put before

approaching the exercise of discretion as to whether to direct or permit its production for that purpose.

11. This is a most unusual case which, in some ways, proceeds in an air of unreality. The declarations sought by the plaintiffs are

permissive: they are set out at p.3 of the judgment of Mr. Justice Geoghegan. But once the defendants’ ability to comply with the

order of the Northern Ireland Court, in terms of the law of this jurisdiction, is established, they will be compelled to do so. To that

extent the permissive nature of the relief sought masks the reality of the defendants’ situation. The material which is sought to be

produced is, without exception, the production of persons and interests hostile to the defendants and is in the possession of the

State authorities in this jurisdiction. It appears that no application for its production by those authorities has been made. The Court

does not know, and has not been informed, why this is so, or whether any embarrassment or difficulty is perceived by the authorities

in themselves producing this material. In that state of information, I cannot be satisfied that there is necessity to make orders

against these defendants of the sort in question here: it would seem a more natural and a more reasonable procedure to apply for

the production of the documents to the State authorities who made them and introduced them into the criminal proceedings. On the

most basic level, the authorities, who hold the originals of the material in the Book of Evidence and at whose suit the transcript of the

trial was produced, are in a position to prove the documents: the defendants, who are merely served with copies, are clearly not in a

position to do so. Secondly, the documents were served on the defendants in their capacity as defendants in a criminal proceeding

and are entirely the product of their prosecutors or persons acting in concert with them, for and at the expense of the State

authorities. The defendants have no responsibility for the accuracy of, or the probity of the means of obtaining, the material in the

documents sought and in some instances challenge its accuracy or veracity. In those circumstances it seems to me necessary to

show why (if it be the case) this material was not sought from those who produced it and who can prove or vouch it.

12. I consider that this novel and unusual application should have been urged on the basis of a much more complete showing of

information, which I consider as a matter of great probability was in fact available to the plaintiffs. I would have taken this view

whether the action in aid of which production is sought was to be heard in this jurisdiction or in any other.

13. I would therefore have allowed the appeals and dismissed the cross-appeal but in each case simply on the basis that there was

insufficient information before the Court to enable it to decide whether to grant or withhold permission.