Bourke v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr Justice Barr |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] IEHC 606 |
| Court | High Court |
| Docket Number | Record No. 2023/794/JR |
and
[2023] IEHC 606
Record No. 2023/794/JR
THE HIGH COURT
JUDGMENT of Mr Justice Barr delivered extempore on 27 th October 2023.
. This is a contested leave application, in which the applicant seeks leave to proceed by way of judicial review for an order quashing a ruling made by Ryan P. refusing him disclosure of certain documents in advance of his forthcoming trial, which is due to commence before Dublin Circuit Criminal Court on 31 st October 2023.
. The applicant is a serving member of An Garda Síochána. He stands charged in respect of two charges of corruption contrary to ss. 5(1)(b) and 7(2) of the Criminal Justice (Corruption Offences) Act 2018.
. Counsel for the applicant, Mr. McGrory KC/SC, stated that the primary evidence against his client consisted of a surveillance transcript of a conversation that was alleged to have taken place between the applicant and his co-accused, the notice party, in the applicant's van on 22 nd December 2018. In the transcript, it appears to be recorded that the applicant received €20,000 from his co-accused; he proceeded to give information to the notice party about the state of an ongoing investigation being carried out by the Criminal Assets Bureau; he appeared to give him advice in relation to the steps that he should take to protect his position; and ended by saying: “ OK, you are fine, I don't want another penny”.
. It is the applicant's case that in the years 2011 – 2014 he was a member of the Regional Source Management Unit in An Garda Síochána, in the Limerick area, which had responsibility for the recruitment and management of police informants. These are referred to as Covert Human Intelligence Sources (CHIS).
. Counsel submitted that even after the applicant left that unit, he continued to have contact with various sources that he had cultivated while working on the unit.
. The applicant maintains that in the course of his role as a recruiter and handler of informants, he had dealings with one Joseph Cahill, as one of his informants. It is permissible for the court to reveal this assertion, because Mr. Cahill instituted High Court proceedings on 7 th October 2021, in which he expressly pleaded that he had become a police informant in or around 2006.
. The proceedings brought by Mr Cahill were personal injury proceedings, which claim damages against a number of defendants including the applicant, the Commissioner of An Garda Síochána, the Minister for Justice Equality and Law Reform and Ireland and the Attorney General. In that writ, the plaintiff claimed that when he wished to cease being a police informant, he was forced to continue in that role due to threats that had been made against him and members of his family by the first and second defendants. In particular, he pleaded that he was threatened that if he did not continue working for the gardaí, his identity as an informant would be revealed to other criminals. He has pleaded that as a result of those actions, he has suffered personal injury, loss and damage.
. The applicant sought production of a range of documents concerning Mr Cahill. In seeking production of those documents, the applicant voluntarily disclosed the line of defence that he intended to take at his forthcoming trial. That defence was summarised in the following way in the written submissions that were lodged before this court:
“ The documents sought (the “Materials”) related in particular to certain covert human intelligence source (“CHIS”) actors. The applicant had formerly been a member of the CHIS unit. His defence is in part based on his assertion that his presence in the company of his co-accused, and any discussion which flowed therefrom, was in furtherance of his attempt to recruit his co-accused.
Moreover, both the applicant and his co-accused contend that their meeting was motivated and coordinated by “JC” who is (by his own admission) a CHIS. A strand of the applicant's defence is that this person, motivated by animus, acted as an agent provocateur to engineer what appeared to be a bribery offence. Notably, JC has not been charged with any offence in relation to an alleged unlawful transaction.”
. An initial application for an order providing for the disclosure of a range of documents concerning Mr. Cahill, was made to Crowe J. in the Circuit Court on 25 th November, 2022. She was furnished with a copy of the documentation in the possession of the first and second respondents. The second respondent had resisted making disclosure of the documents on the basis that they were not relevant to the matters that would arise in the course of the applicant's trial.
. Having heard evidence and legal submissions, Crowe J. delivered her ruling on 31 st January 2023, refusing to make an order directing that disclosure be made of the requested categories of documents.
. The applicant renewed his application for production of the documents, and for production of additional documents, being records of all his feelings while acting as a CHIS recruiter and handler. That application was moved before Ryan P. on 22 nd May 2023. It was based on two developments that had occurred: the receipt by the applicant of the information that had been sworn by an investigating Garda to ground an application for a search warrant in respect of the applicant's computer, which information had contained references to the applicant's dealing with Mr. Cahill; and was based on the fact that it had been indicated by counsel representing the notice party, that it was his intention to bring the content of a voluntary statement that had been made by the co-accused on 20 th January 2022, to the attention of the jury; in which statement the notice party had made extensive references to Mr. Cahill and had stated that he had been the person who had forced the notice party to have dealings with the applicant and had been the person who suggested that he pay money to the applicant.
. Having considered the material that was put before her, and having considered the submissions made on behalf of the parties, Ryan P. gave her ruling on the afternoon of 23 rd May 2023, at which time she held that disclosure of the documents sought would not be ordered, as she did not consider the documents to be relevant to the issues that would arise at the trial. It is that order, that the applicant seeks to quash if given leave to proceed by way of judicial review.
. The applicant also seeks an order of mandamus directing the first and second respondents to make disclosure of the categories of documents that had been requested by the applicant in his application for pre-trial disclosure, as made to Ryan P. on 22 nd May 2023.
. On behalf of the applicant, it was submitted that the applicant had placed more than ample evidence before the court to persuade it that he had crossed the fairly low threshold to obtain leave to proceed by way of judicial review for the reliefs sought in his statement of grounds. In this regard, counsel referred to the test as laid down by Finlay C.J. in G v. DPP [1994] 1 IR 374.
. It was submitted that the applicant was entitled to rely on the extensive rights which were given to an accused in relation to the production of documentation further to Article 7 of Directive 2012/13 EU of the European Parliament and of the Council of 22 nd of May 2012 on the right to information in criminal proceedings (hereinafter referred to as “the Directive”). It was submitted that Article 7(2) gave an accused a wide-ranging right to obtain documentation and other material evidence in the possession of the prosecuting authorities, in advance of his trial.
. It was submitted that the learned Circuit Court judge, in refusing the applicant's application for documents concerning Mr. Cahill, which counsel submitted were clearly relevant to the background to his relationship with his co-accused and to his defence of entrapment, had departed from the rights that were afforded to the applicant as an accused in relation to production of material evidence, as provided for in Article 7(2) of the Directive.
. Counsel submitted that if it were argued that the ruling of the learned Circuit Court judge was in accordance with existing Irish law, then the argument would be made that Ireland had failed to properly transpose the provisions of the directive into Irish law. In this regard, it was submitted that the Criminal Procedure Act 2021, which had been enacted subsequent to the Directive, had failed to make provision for the proper transposition of the rights conferred by Article 7(2) of the Directive. In such circumstances, as the date for implementation of the Directive had long passed, it was submitted that the provisions of Article 7(2) were directly applicable in Irish law.
. It was further submitted that having regard to the account of the hearings before both Crowe J. and Ryan P., and in particular due to the lack of any reasons having been furnished by the latter, for her refusal to direct production of the requested documentation, that decision was amenable to judicial review for failure to give reasons as required in Irish law: see Mallak v. Minister for Justice [2012] 3 IR 297.
. While it was accepted that it was not normally permissible to challenge decisions or rulings that had been made in the course of the pre-trial process, or during the trial itself, it was submitted that in exceptional circumstances where there had been a fundamental departure from the requirements of justice or the requirement to act in a lawful manner, it was appropriate for the High Court to intervene by way of the judicial review...
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