District Court allows Garda access to father's court digital audio record for child assault investigation balancing justice and privacy.

[2017] IEDC 13

AN CHÚIRT DÚICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

J and G

Respondents

H, guardian ad litem to K

In the matter of child K

In the matter of an application under Order 12 District Court Rules, applicant Garda C

[Note: This version of the original decision delivered is prepared for the purpose of publication. Any changes from to the original are

intended only to be as to form and not as to substance, and are for the purpose of reducing the possibility of identification of the

child.]

1. On 3rd January 2017, the Child and Family Agency (the CFA) issued a notice of application for an emergency care order (ECO)

pursuant to s. 13 of the Child Care Act 1991 (the 1991 Act) in respect of child K. K’s mother is J, K’s father is G. The application

notified was to be made at 10.30am on the following day, 4th January 2017. The application was issued in circumstances where the

Gardaí, on 2nd January 2017, had exercised their powers under s. 12 of the 1991 Act to remove K to safety and deliver K up to the

custody of the CFA.

2. The application was heard on 4th January 2017. Having heard the application I made an ECO in respect of K, until 11th January

2017.

3. Application has now been made by Garda C under Order 12B of the District Court rules [SI 99/13] for an order allowing access to

the digital audio record [DAR] of the court proceedings in this matter on 4th January 2017

4. Garda C’s first application was dated 20th March 2017, lodged for hearing on 29th March 2017. He applied for access to the DAR of

all that had been said in court by G, in evidence or otherwise, including what had been said by G while Garda C was in court, and

what might have been said by G when Garda C was not in court. When that application came before the court, the court made some

observations regarding the parties thereto and regarding service. That application ultimately was not proceeded with.

5. Garda C’s second application was dated 19th April 2017, lodged for hearing on 26th April 2017. Both respondent parents in the 1991

Act proceedings were represented in court on 26th April 2017, and both opposed the application. The CFA indicated that it was not

objecting to the application. The court joined K’s guardian ad litem [GAL] to the application. The application was adjourned to 18th

May 2017, for hearing and submissions. On that date, owing to late delivery of written submissions the application was further

adjourned to 25th May 2017, when the matter was heard.

6. It became clear during argument that the application dated 26th April 2017 did not fully reflect what was actually being sought by

Garda C. I therefore permitted the lodgement of an amended application, to be lodged and served by 1st June 2017. I indicated that I

would rely on the argument and submissions already heard, and would also allow further argument and submissions as might be offered

following service of any amended application. An amended application was served, dated 30th May 2017. The matter was listed for

mention on 1st June 2017, and adjourned for further hearing on 19th June 2017. On 19th June 2017, further short submissions were

made, and the court then reserved decision.

7. In the application which ultimately proceeded to hearing, Garda C seeks access to the DAR of any evidence given by J and G at the

hearing on 4th January 2017. He seeks this to assist with his investigations of an alleged assault of K. He states that he was not in

the court on 4th January 2017 other than to give his own evidence. He states that when he had completed his evidence he was

asked by the solicitor for the CFA to leave the court “without explanation”. (The explanation for that request is clear to me – he was

asked to leave because the hearing of the ECO application was held “in camera”.) He states that he is aware that G gave evidence

containing certain admissions, although he does not state how he is aware of this when he was not in the court other than to give his

own evidence, and his source of information was not disclosed at any stage of this hearing. In essence he states that he believes

that obtaining access to the DAR of evidence given by G may assist his enquiries because it contains certain admissions.

8. The application is opposed by both respondent parents. In essence, they argue that, on balance, it is not in the in the interests of

justice that the evidence requested be disclosed. The application is also opposed by K’s GAL. The CFA took no position on the

application.

9. I received written and oral submissions from the applicant, the mother and the GAL. I received oral submissions from father. I

received no submissions from the CFA, and the CFA did not participate in the argument before the court. I have considered the

submissions made.

10. S29 (1) of the 1991 Act provides:

29.—(1) Proceedings under Part III, IV or VI shall be heard otherwise than in public.

S29(1) of the 1991 Act applies to the ECO proceedings, in effect directing that such proceedings be held in camera, and

thus are “protected proceedings”.

11. The relevant parts of Order 12B provides as follows:

1. In this Order,

“record” means a contemporaneous record of the proceedings concerned made by any one or more means, including,

without limitation—

(a) any shorthand or other note, whether written, typed or printed, and

(b) any sound recording or other recording, capable of being reproduced in legible, audible or visual form, approved by

the court;

….

5. (1) Any party or person who seeks access to any part of a record of proceedings which is held by or for the Court (in

this rule referred to as the “relevant record”) may apply to the Court by the issue and service of a notice of application

(in the Form 12B.1, Schedule C) signed by the moving party or solicitor for the moving party. Every such notice shall be

grounded upon an affidavit.

(2)….

(3) ….

(4) ….

(5) The Court may, for the purposes of considering any such application, review privately the contents of the relevant

record.

(6) Subject to sub-rule (7), the 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 concerned as is specified in the order made

on the application, by such means and at such time or times as may be specified in that order and on such terms and

under such conditions (including terms restraining the publication, dissemination or further disclosure of all or any part of

the relevant record by the applicant, and the giving of an undertaking to such effect) as the Court may direct.

(7) Unless the Court otherwise directs, access to the relevant record concerned shall, where permitted under sub-rule

(6), be afforded solely by the provision to the applicant of a transcript of all or any part of that record, on payment by

the applicant to the transcript writer of the transcript writer's fee for producing the transcript.]

12. Order 12B does not make any distinction between proceedings that are held in camera and proceedings held in public. Order 12B

(6) provides that …” the 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 concerned.” It appears to me that while Order 12B sets out the mechanism by

which an application for access to DAR can in general be made, that it does not alter the in camera rule, which still applies to

protected proceedings subject to the discretion of the court to relax or lift the rule.

13. A difficult aspect of this entire application is that the parties are to some extent arguing in the abstract, and they are somewhat

limited in their arguments in that none of them (except the CFA who has made no submissions and has not engaged in any argument)

actually knows who gave evidence and what evidence was given. In the course of the hearing I have informed the parties that J did

not give any evidence. They will be aware by inference that the court would simply not have engaged with this application to the

extent that it has, if G had not given evidence.

14. The jurisdiction of the District Court, in the context of s29 of the 1991 Act, to relax or lift the in camera rule, was dealt with in

HSE v McAnaspie [2012] 1 IR 548, [McA] and I am satisfied that the court has jurisdiction to do so. In McA, Mr Justice Bermingham

referred to Eastern Health Board v Fitness to Practise Committee of the Medical Council and other [1999] 3 IR 399 [EHB], and set

out in full the comments of Barr J at pages 428 to 430 of the report of EHB, as follows:-.

1. Court proceedings relating to the alleged abuse of children are normally held in camera. This is authorised by Article

34.1 of the Constitution of Ireland, 1937, as an exception to the general rule that justice shall be administered in public.

2. The primary reason for the in camera rule in such cases is to provide protection for minors from harmful publicity

arising out of the disclosure of evidence and other related matters in protected proceedings.

3. A statutory imperative that proceedings of a particular nature be held in private (as provided, for example, by s. 5 of

the Punishment of Incest Act, 1908) does not imply that there is an absolute embargo on disclosure of evidence in all

circumstances. Such an embargo requires specific statutory authority to displace judicial discretion at common law to

permit disclosure in appropriate circumstances. If an absolute embargo on the publication of evidence adduced in the

course of in camera proceedings in all circumstances were implied from a mandatory requirement that such proceedings

be held in private, then grievous harm could be done to public and private interests and to the pursuit of justice. For

example, if in the course of proceedings in camera, it was established that a witness was guilty of perjury or some other

crime, the trial judge would be unable to refer the matter to the Director of Public Prosecutions with a view to having a

criminal prosecution brought against the wrongdoer. Likewise, if it emerged in evidence protected by the rule that a

professional witness, or a lawyer acting in the case, was guilty of professional misconduct, the trial judge would be

inhibited in referring the matter to the offender's professional body for investigation. It would also follow if there was an

absolute embargo that a child concerned in such proceedings would be spancelled in pursuing claims which he or she

might have for damages arising out of evidence protected by the in camera rule, notwithstanding that the primary

purpose of the rule in such cases is to protect the minor. A major far-reaching change in the law, which sets aside

established practice, could not arise merely by implication derived from a mandatory statutory requirement that certain

proceedings shall be held in private but, in my view, would require specific statutory authority.

4. I have been unable to discover any specific statutory provision in Irish law which provides that there is an absolute

embargo in all circumstances on the publication of information deriving from proceedings held in camera.

5. There is an established practice at common law recognised in England and in this jurisdiction (see P.S.S. v.

Independent Newspapers (Ireland) Ltd. (Unreported, High Court, Budd J., 22nd May, 1995), that the court in proceedings

held in camera has a discretion to permit others on such terms as the judge thinks proper to disseminate (and in

appropriate cases to disseminate himself/herself) information derived from such proceedings where the judge believes

that it is in the interest of justice so to do, due and proper consideration having been given to the interest of the person

or persons intended to be protected by the conduct of the proceedings in camera. In given circumstances the judge

may find that a crucial public interest, such as the prosecution of crime or the protection of vulnerable children, takes

precedence over the interest of the protected person in non-disclosure of the information in question.

6. In considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand,

and the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the court is bound

by the concept that the paramount consideration is to do justice - see In re R. Ltd. [1989] I.R. 126.

7. The use of evidence emanating from an in camera hearing in other legitimate proceedings where the public interest

or the interest of the protected person or some other interested party requires, includes not only related litigation in

court but also other non-judicial proceedings such as a statutory inquiry by a professional body into complaints made to

it about professional negligence or incompetence of one of its members - see A County Council v. W. [1997] 1 F.L.R.

574.

8. It is a contempt of court for any person to disseminate information derived from proceedings held in camera without

prior judicial authority.

9. Some of the legislative provisions relating to in camera proceedings require mandatory privacy and in others it is a

matter for the presiding judge to decide whether the proceedings shall be heard in private. In my opinion that distinction

relates only to the particular proceedings and whether or not the presiding judge has any discretion therein in deciding

on the imposition of the in camera rule. It does not affect in either case the exercise by the court of its discretion to

permit the subsequent disclosure of in camera information in the interest of justice, the achievement of which, as

previously stated, is its paramount obligation. In short, whether the in camera rule applies mandatorily or by way of

judicial discretion does not affect the authority of the court to permit disclosure of protected information where justice

requires that disclosure should be made.

10. If justice requires disclosure of information protected by the in camera rule, the court should take all reasonable

steps to protect the interest of minors and others who are intended to have the benefit of the rule in the given case.

The court has power, as an incidence of its discretion to permit disclosure of protected information, to impose such

terms in that regard as it deems necessary in the circumstances.

15. At paragraph 31 of McA, Bermingham J states “the comments of Barr J offer powerful support for the proposition that the

District Court has the power to lift or relax the in camera rule and…set[s] out the considerations which should be taken into account

in so doing.”

16. At paragraph 36 of McA, the court notes that “…it is of note that at a very early stage the HSE sought and was granted leave to

disclose information [arising from the protected proceedings] to An Gardaí Síochána and the Minister for Children. If the prohibition

on disclosure of all information was absolute, that was an application that …could not have been granted.”

17. At No 8 of Judge Barr's comments in EHB referenced above, he stated "it is a contempt of court for any person to disseminate

information derived from proceedings held in camera without prior judicial authority".

18. It is in effect common case in the submissions that this court has jurisdiction to lift or relax the in camera rule. Where the parties

and GAL differ is the circumstances in which the court should exercise its discretion to lift or relax the in camera rule, and specifically

whether it should be lifted or relaxed in the present case.

19. Applications are regularly made to this court to lift or relax the in camera rule, and are sometimes granted in whole or in part, and

are sometimes refused. Such applications are dealt with, and granted or refused, on their individual merits.

20. The most common application is for the release of social work reports, guardian reports and expert reports to experts carrying out

assessments/further assessments on behalf of one or more parties. I am not aware that any distinction has been made between

reports that have been prepared for the purpose of the proceedings and reports that have actually been admitted to or proved in

evidence. Where such applications are granted, and in so far as information is released, the information effectively is for use within

the same proceedings under the 1991 Act, between the same parties etc. In so far as information is released a condition is generally

imposed that it not be used for any other purpose without further court order.

21. Applications for release of information / evidence from the protected proceedings into separate proceedings are also made,

although much less frequently. For example, an application by a respondent parent has been granted for release of information

(including notes of evidence given – in essence the equivalent of DAR) into civil proceedings brought by that parent in pursuance of a

claim alleged to have arisen at least in part from the alleged conduct of the CFA or its predecessor in connection with its statutory

role in child protection in respect of that parent’s child. This application was granted subject to considerable restriction of use of the

information. This type of application would appear to fall within what is referred to in Barr J's comment No 3, viz "it would also follow if

there was an absolute embargo that a child concerned in such proceedings would be spancelled in pursuing claims which he or she

might have for damages arising out of evidence protected by the in camera rule..."

22. A further example is an application granted with some conditions / restrictions, being an application by a parent respondent in

1991 Act proceedings who was also a defendant in criminal proceedings, for the DAR of evidence in the 1991 Act proceedings, for the

purpose of possible comparison with statements contained in a Book of Evidence.

23. In each of the latter two above examples the applicant for lifting / relaxation of the in camera rule was a parent / respondent to

the 1991 Act proceedings. The information released included notes of or DAR / transcript of the evidence given, including that given

by the applicant, who was either present or represented in court while such evidence was given. It is however clear from the

authorities opened that the discretion of the court to lift the in camera rule is not limited to such cases

24. As previously referenced this court granted an application in McA, in special circumstances where tragically the child the subject

of those 1991 Act proceedings was deceased and a Garda investigation into his death was proceeding. The court applied restrictions

to the use of the information, in general terms the information be used only for the purpose for which it was sought. The court has

also previously ordered disclosure of in camera material to AGS [where the application for disclosure did not seek the DAR of

evidence]

25. Much of the argument and submissions in this hearing was in respect of such interest as there may be in maintaining

confidentiality in 1991 Act cases and in encouraging candour and frankness in evidence given by witnesses and respondents in such

cases.

26. At comment no 2 in EHB, Barr J says “the primary reason for the in camera rule…is to provide protection for minors from

harmful publicity arising out of the disclosure of evidence and other related matters in protected proceedings”. While he did not in

his comments refer to any other reason(s) for the existence of the in camera rule, he clearly did not exclude the existence of other

reasons, and the issue of frankness and candour is referred to in the EHB judgement (p411 of the report). I am of the view that Barr J

did not intend his comments, and in particular comment no 2, to be exhaustive of the matters that ought to be considered in deciding

on an application of this type, and specifically were not exhaustive as to the consideration of reasons for the existence of the in

camera rule (and matters arising therefrom) other than the specific reason set out by him as the primary reason

27. None of the Irish cases opened refer to maintaining confidentiality in 1991 Act or similar cases and /or to encouraging candour and

frankness in such cases as being reasons for the existence of the in camera rule, other than the above mentioned reference in the

EHB judgement (p411 of the report).

28. A number of UK cases have been opened in submissions and argument. I am aware that such cases are not authoritative in this

jurisdiction, that in general terms such cases were decided in a different statutory and constitutional context and that the particular

cases opened were all decided after the enactment of s. 98 of the [UK] Children Act 1989 [s. 98], a provision which is not mirrored in

this jurisdiction. Subject to those reservations, I regard the cases as useful in considering the confidentiality / frankness and candour

points in issue. The cases opened include Re D and M (Disclosure: Private Law) [2003] 1 FLR 647, Re K and ors (Minors) (Disclosure)

[1994] 1 FLR 377, Re L (Police Investigation: Privilege) [1995] 1 FLR 999, Re EC (Disclosure of material) [1996] 2FLR 725, and Re AB

(Care Proceedings; disclosure of Medical Evidence to the Police) [2003] 1 FLR 725. It appears from those cases that the UK courts

generally accept that there exists a public interest in maintaining confidentiality and in encouraging candour and frankness in 1991

Act type protected proceedings, and that such public interest should be considered in deciding on applications for disclosure of

evidence from such protected proceedings, but is not determinative of such applications. None of the parties nor the GAL took issue

with the existence of such public interest and I am satisfied that it is a consideration that ought to be taken into account.

29. The leading UK case appears to be Re EC (Disclosure of material) [1996] 2FLR 725, [EC] a decision of the UK Court of Appeal. At

page 733, the court says

“In the light of the authorities, the following are among the matters which a judge will consider when deciding whether

to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the

various factors will inevitably vary very much from case to case:

1. The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be

adversely affected by the order in any serious way, this will be a very important factor.

2. The welfare and interests of other children generally.

3. The maintenance of confidentiality in children’s cases.

4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very

important factor and is likely to be of particular importance in a case to which s. 98(2) applies. The underlying purpose

of s. 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will

not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive

of guaranteed confidentiality is not given by the words of the section and cannot be given.

5. The public interest in the administration of justice. Barriers should not be erected between one branch of the

judicature and another because this may be inimical to the overall interests of justice.

6. The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in

convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in

making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very

important factor.

7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on

the investigation or the trial, this will militate against a disclosure order.

8. The desirability of co-operation between various agencies concerned with the welfare of children, including the social

services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly

important in cases concerning children.

9. In a case to which s. 98(2) applies, the terms of the section itself, namely, that the witness was not excused from

answering incriminating questions, and that any statement of admission would not be admissible against him in criminal

proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating

statement and any danger of oppression would also be relevant considerations.

10. Any other material disclosure which has already taken place.”

30. Leaving aside the specific references to s. 98, there appears to me to be no conflict between “the matters which a judge will

consider” as set out in EC, and the comments of Barr J referenced at paragraph 31 of McA by Bermingham J as being “…the

considerations which should be taken into account…” in considering whether to release evidence from protected proceedings.

31. I am satisfied in considering this application for disclosure that I must do so in the particular factual matrix of the case to which

the application refers i.e. the ECO application in the within 1991 Act proceedings, under the provisions of the Constitution and the

1991 Act, particularly s.24 and s.29, and that in doing so I should too take into account the considerations identified by Barr J in EHB,

which are not exhaustive, informed as appropriate by the submissions made.

32. In Re EC, the court was of the view that it was not possible to place the various matters for consideration in any order of

importance. I am satisfied that in this jurisdiction the welfare of the child who is the subject of the 1991 Act proceedings, namely K,

is the paramount (but of course not the only) consideration. I am satisfied that it is not possible to place the various other matters

for consideration in any order of importance.

33. The GAL accepts that the court has jurisdiction to order disclosure of evidence from protected proceedings. In submissions he

accepts that McA and EHB represent the current law. He submits that in extrapolating the rationale of those cases and applying them

to the current application, inter alia that “ the privacy rights of both K and L (L is a sibling of K, and was not the subject of the ECO

application but is now subject to 1991 Act proceedings) are such that disclosure should be only in wholly exceptional circumstances

and should be used as a last resort” and “the cocoon of privacy all but guaranteed by the in camera rule should be practically

sacrosanct and should only be lifted in the most exceptional circumstances”. No such wording is used in either McA or EHB, and I do

not accept that the rationale of those cases can be extrapolated to support those submissions. Rather, as stated at comment no. 5

in EHB,

“In given circumstances the judge may find that a crucial public interest, such as the prosecution of crime or the

protection of vulnerable children, takes precedence over the interest of the protected person in non-disclosure of the

information in question”,

and comment no. 6

“In considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand, and

the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the court is bound by

the concept that the paramount consideration is to do justice - see In re R. Ltd. [1989] I.R. 126”,

and comment no. 9

“In short, whether the in camera rule applies mandatorily or by way of judicial discretion does not affect the authority of

the court to permit disclosure of protected information where justice requires that disclosure should be made”.

I do not accept that justice should only be done in an exceptional case or as a last resort. What I can accept is that it may be an

exceptional case where the interests of justice require disclosure of evidence from protected proceedings, however investigation of

crime is recognised in both EHB and in EC as potentially grounding a decision to so disclose.

34. The GAL in submissions refers to In re Manda (1993) 1 All ER 733, a case which (in so far as it was quoted in submissions)

supports the proposition that the court has a discretion to disclose evidence from protected proceedings [this case is also referenced

in EHB]. The passage highlighted by the GAL confirms that court’s opinion that persons who give evidence in protected proceedings

should not assume that it would remain confidential in all circumstances. This point was also made in Re EC at no.4, albeit with

specific reference to s.98. In my view there is nothing in EHB or McA to suggest that a person giving evidence in protected

proceedings can assume confidentiality in all circumstances.

35. The GAL also submits that it would be premature to order the disclosure sought unless and until the applicant Garda satisfies the

court that his investigation cannot proceed to conclusion by other means which do not necessitate such disclosure, or alternatively

that the disclosure sought is necessary [“absolutely necessary” in the GAL submission] for a proper investigation. I do not accept this

submission. I accept that the information sought must be at least potentially relevant and there must be some nexus between the

information sought and the alleged offence being investigated. In my view a Garda investigation should include all reasonable means,

and all available information. Excepting clearly vexatious applications, it would not be for the court to investigate the Garda

investigation in order for the court to adjudicate on whether the information sought is necessary or absolutely necessary to the

investigation. It is for the investigating Garda to consider the information, which may or may not ultimately inform his investigation.

36. As referenced above, the UK cases decided post the commencement of s.98 were decided in the specific context of s.98. In

effect, s.98 abolished in the UK the privilege against self- incrimination in the context of evidence given in cases equivalent to 1991

Act cases - the quid pro quo being that an admission made in the course of evidence in protected proceedings is not admissible in

criminal proceedings. No such statutory provision exists in this jurisdiction. Counsel for the applicant Garda submitted in oral

submissions that in the absence of such a statutory provision, it cannot be said that the in camera rule in itself, including reference

to the interest of encouraging frankness and candour, could prevent any such self-incriminating statement from being available for

the purpose of the Garda investigation of the alleged offence. I agree with his submission. It is clear from the UK cases that even

where s.98 applies, self-incriminating admissions are released from protected proceedings for the purposes of investigation of

offences, even when they could not be used in evidence in a trial. Where s.98 did not apply, as in the case of Re L, while the facts of

that case are somewhat different from here, the court ordered the disclosure of self-incriminating statements for the purpose of

police investigation.

37. Whether self-incriminating statements or indeed any statements at all, made in protected proceedings in this jurisdiction would be

admissible in a trial for any offence, in the absence of a provision equivalent to s.98, would be a matter for the trial judge.

38. In the within case, the applicant Garda is investigating an allegation of assault of a child who was at the date of the alleged

assault aged less than 1 year. Such an offence, if proved, would constitute a “crime” and in my view an offence of “gravity”.

39. The investigation of such a serious alleged offence is in the public interest. K has a personal interest in the investigation of such

an alleged offence, in that such investigation may lead to either the conviction of or the exoneration of the alleged perpetrator /

parent, either of which results (while not determinative) could in the future potentially significantly contribute to decisions regarding

his care. There is of course no guarantee that an investigation will lead to either result.

40. This court will be in a position to make whatever care decisions that may be required in respect of K whether or not the alleged

offence be investigated or prosecuted, and whether or not there is a conviction. The result of any investigation or prosecution might

inform this court’s decision making but is not necessary, much less essential, to enable this court decide any application under the

1991 Act. It is a regular occurrence that parents face criminal prosecutions that take far longer to conclude than 1991 Act

proceedings.

41. K has a personal interest in being protected from “harmful publicity” arising out of disclosure of evidence from the protected

proceedings. There is no question of “harmful publicity”, or indeed any “publicity” in the context of what is sought here. The

disclosure is sought for the purpose of investigation of crime. There is no suggestion in the application or the argument that the

information will be published. The relaxation of the in camera rule sought is for use of the information for a particular purpose, and if

ordered for that purpose does not authorise use for any other purpose, much less does it permit publication. The information remains

subject to the in camera rule except as to the extent specified in any order, and in particular remains subject to s31 of the 1991 Act,

which provides:-

31.—(1) No matter likely to lead members of the public to identify a child who is or has been the subject of proceedings

under Part III, IV or VI shall be published or broadcast.

(2) Without prejudice to subsection (1), the court may, in any case if satisfied that it is appropriate to do so in the

interests of the child, by order dispense with the prohibitions of that subsection in relation to him to such extent as may

be specified in the order.

(3) If any matter is published or broadcast in contravention of subsection (1), each of the following persons, namely—

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper

or periodical,

(b) in the case of any other publication, the person who publishes it, and

(c) in the case of a broadcast, F254[any person] who transmits or provides the programme in which the broadcast is

made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or

both.]

(3A)…

(4) Nothing in this section shall affect the law as to contempt of court.

42. G gave evidence in the ECO application. Prior to his giving evidence, I advised him in respect of the privilege against self-

incrimination. His evidence was at least prima facie frank and candid, and contained statements that might be regarded as self-

incriminating [although I am not deciding whether they are or are not]. His evidence was not tested to any degree. His evidence did

contribute to my decision on the application.

43. The parties and GAL agree that a number of different interests arise, and that in so far as there are any competing interests, the

court must strike the appropriate balance between those interests. See comment no 8 EHB.

44. I have specifically considered the welfare interests of K. K is not of an age to express any view on the application, however K’s

interests are represented by the GAL. As it is expressed at no 1 in EC, “if the child is likely to be adversely affected by the order in

any serious way, this will be a very important factor”. I do not consider it likely that the welfare or interests of K will be adversely

affected at all by ordering the disclosure sought. It is more likely (though by no means certain) that the welfare or interests of K will

be promoted by granting the application [see in particular para 39 above]. In so far as it is relevant, and because it has been raised

by the GAL, I do not consider it likely that the welfare or interests of L will be adversely affected at all by ordering the disclosure

sought. None of the disclosure sought refers to L.

45. I have considered the public interest in the investigation of crime, and the private interest of K in the investigation of crime of a

serious nature. I have considered the public interest in encouraging frankness and candour in evidence in 1991 Act proceedings and

the private interest of K in encouraging frankness and candour in evidence in these 1991 Act proceedings. I have considered whether

G in particular and J have an absolute entitlement to confidentiality in respect of evidence given and conclude that they do not. I

have considered the effect or otherwise of the privilege against self-incrimination in so far as it might arise in the circumstances of

the evidence given in this case. I have considered the matters set out by Barr J in EHB and approved by Bermingham J in McA as “the

considerations which should be taken into account…”. I have considered these matters in the context of the facts of the application

before me, and of the evidence actually given, and the submissions made.

46. On balance, the interests of justice require that the disclosure sought be in general terms allowed, for the purpose of

investigation of an alleged assault of K.

47. I am satisfied that in fairness to G, and in the interests of the investigation, that what should be disclosed is the DAR of the

“preliminary” to G giving evidence to include the self-incrimination “warning” , together with all of the evidence given by G, altogether

about 3 pages of transcript.

48. I will discuss with the parties and GAL as to the form of order.

49. Only Garda C has sought disclosure of the DAR. I invite the parties and GAL to briefly and immediately address whether the DAR to

be disclosed to Garda C should now be disclosed to any of the parties or the GAL.

50. I will hear any of the parties in respect of any application for a stay on the order made.

Brendan Toale

District Court DMD

20.09.17