Breathnach v Ireland (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1982 No. 4021P]
• Court: High Court

High Court

[1982 No. 4021P]

Breathnach v. Ireland (No. 3)

Osgur Breathnach

Plaintiff

and

Ireland, The Attorney General, Joseph Egan, Thomas Fitzgerald, John Murphy, Thomas Dunne, William Maher, Gerard O'Carroll, James Butler and Michael Egan, Defendants (No. 3) and the Director of Public Prosecutions, Notice Party

Cases mentioned in this report:—

Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277; [1992] I.L.R.M. 209.

Attorney General v. Simpson (No. 2) [1959] I.R. 105.

Burmah Oil Co. Ltd. v. The Bank of England [1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700; (1979) 123 S.J. 780.

Compagnie Financière et Commerciale du Pacifique v. The Peruvian Guano Co. (1882) 11 Q.B.D. 55.

Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225; [1991] I.L.R.M. 395.

Director of Public Prosecutions (Hanley) v. Holly [1984] I.L.R.M. 149.

Evans v. Chief Constable of Surrey [1988] Q.B. 588; [1988] 3 W.L.R. 127; [1989] 2 All E.R. 587; (1988) 132 S.J. 898; [1988] L.S. Gaz. July 20, 45.

Geraghty v. Minister for Local Government [1975] I.R. 300.

Holloway v. Belenos Publications Ltd. [1987] I.R. 405; [1987] I.L.R.M. 790.

Kerry County Council v. Liverpool Salvage Association and anor.[1905] 2 I.R. 38.

Marks v. Beyfus (1890) 25 Q.B.D. 494; 59 L.J.Q.B. 479; 63 L.T. 733; 55 J.P. 182; 38 W.R. 705; 6 T.L.R. 406; 17 Cox C.C. 196.

Murphy v. Dublin Corporation [1972] I.R. 215; (1972) 107 I.L.T.R. 65.

People v. Breathnach (1980) 2 Frewen 43.

Smurfit Paribas Bank Ltd. v. A.A.B. Export Finance Ltd. [1990] 1 I.R. 469; [1990] I.L.R.M. 588.

Practice - Documents - Discovery - Privilege - Privilege based on the public interest - Legal professional privilege - Documents sent by gardaí to Director of Public Prosecutions in connection with investigation of offence - Whether documents privileged on grounds of public interest - Whether privileged on grounds that they were brought into being in contemplation of litigation - Onus of proof - Rules of the Superior Courts, 1986 (No. 15),, O. 31, r. 29.

Constitution-Separation of powers - Administration of justice - Function of judicial power in production of evidence.

Notice of Motion.

The facts are summarised in the headnote and are fully set out in the judgment of Keane J., post.

By plenary summons dated the 31st March, 1982, the plaintiff instituted proceedings claiming damages for assault and battery, false imprisonment, intimidation, malicious prosecution and failure to vindicate his constitutional rights. On the 11th February, 1991, the High Court (Barr J.) made an order directing the notice party to make discovery on oath and produce for inspection all records relating to communications between the third to tenth defendants and any other members of An Garda Síochána concerning the arrest, detention and interrogation of the plaintiff at the Bridewell garda station in March and April, 1976.

On the 28th February, 1991, the plaintiff issued a motion seeking the attachment of the notice party for non-compliance with the order of Barr J. An affidavit as to documents was sworn on behalf of the notice party on the 18th April, 1991, and following the service by the plaintiff upon the notice party of a notice to produce, the notice party served a notice on 8th May, 1991, objecting to the production of the documents on the grounds outlined in the affidavit as to documents.

On the 5th June, 1991, the plaintiff issued a notice of motion applying for inspection by the court of the documents. The motion for attachment of the notice party came on for hearing before the High Court (Keane J.) on the 15th and 16th October, 1991, and, by consent of the parties, the motion was treated as one for discovery.

On the 5th April, 1976, the plaintiff was arrested by the third defendant in connection with investigations into the armed robbery of a mail train. While in the custody of the gardaí he made oral and written statements confessing his involvement in the offence. The Director of Public Prosecutions preffered charges against the plaintiff, and he was tried and convicted by a Special Criminal Court. On appeal, the Court of Criminal Appeal quashed the conviction, finding that the court of trial was not entitled to be satisfied beyond a reasonable doubt that the confessions were voluntary, or that the manner in which they were made satisfied the basic requirements of fairness.

The plaintiff brought proceedings against the defendants claiming damages for assault and battery, false imprisonment, intimidation, malicious prosecution and failure to vindicate his constitutional rights. The High Court (Barr J.) ordered the Director of Public Prosecutions to discover ". . . all records relating to communications between (the third to tenth defendants) and any other members of An Garda Síochána in the months of March and April 1976, which are, or have been, in the possession or power of the Director of Public Prosecutions".

In an affidavit as to documents the notice party deposed that he had in his possession or power a number of documents relating to the matters in issue, but claimed privilege in respect thereof. The plaintiff brought a motion requesting the inspection by the court of the documents for the purposes of determining the validity of the claim of privilege.

At the hearing of the motion, the notice party claimed privilege in respect of the documents set out in the second part of the schedule to the affidavit on the grounds that disclosure of the said documents would be contrary to the public interest. Most of these documents were garda files connected with the investigation of the offence with which the plaintiff had been charged, as well as a report forwarded by the investigating gardaí to the notice party for his decision as to whether a prosecution should be initiated against the plaintiff. It was submitted that the documents were brought into existence for the purpose of communicating with the notice party in relation to matters relevant to the exercise of his functions; that the communications were made by members of An Garda Síochána in circumstances where they held a reasonable belief that the communications were, and would remain, confidential; that it was necessary to maintain the confidentiality of such communications in order to ensure full disclosure by An Garda Síochána of any fact considered to be of relevance to the notice party in the discharge of his office; and that the documents might make reference to the opinion of An Garda Síochána as to the involvement in the offence of certain persons and whether or not those persons were members of particular organisations. It was further submitted that these documents were privileged on the ground that they had come into being in contemplation of litigation.

On behalf of the plaintiff it was submitted that the notice party's claim of public interest privilege was misconceived, and that the claim that the documents had come into being in contemplation of litigation was of no application in the instant proceedings, which were between different parties. However, it was conceded that the remainder of the documents in the second part of the schedule, and all the documents in the third part of the schedule, which consisted of communications between the notice party and his legal assistants, were privileged by reason of legal professional privilege.

Held by Keane J., in granting the relief sought, 1, that a party was entitled pursuant to O.31, r. 29 of the Rules of the Superior Courts, 1986, to the production and inspection of documents in the possession, custody or power of a person who was not a party to the proceedings where the documents were relevant to an issue arising or likely to arise out of the proceedings, in accordance with the same legal principles as applied to applications for discovery against a party to the proceedings.

Dictum of Brett L.J. in Compagnie Financière du Pacifique v. The Peruvian Guano Co.(1882) 11 Q.B.D. 55 considered.

2. That the notice party's claim of privilege should be rejected to the extent that it was based upon the claim that the documents concerned belonged to a particular class of documents, namely, documents containing communications between members of An Garda Síochána acting in the course of their duty.

Murphy v. Dublin Corporation [1972] I.R. 215 and Ambiorix Ltd v. Minister for the Environment (No.1)[1992] 1 I.R. 277 considered; Attorney General v. Simpson (No. 2)[1959] I.R. 105 not followed; Director of Public Prosecutions (Hanley) v. Holly[1984] I.L.R.M. 149 applied.

3. That the grounds stated in support of the claim of public interest privilege would apply equally to a wide range of other criminal prosecutions. It would be wholly at odds with the constitutional principle that the administration of justice was the exclusive preserve of the courts were the notice party to be in a position to prevent the courts from inspecting any document which came into being for the purpose of criminal proceedings by making a claim of public interest privilege.

Murphy v. Dublin Corporation [1972] I.R. 215, Ambiorix Ltd. v. Minister for the Environment (No. 1)[1992] 1 I.R. 277 and Director of Public Prosecutions (Hanley) v. Holly [1984] I.L.R.M. 149 considered.

4. That there might be documents which were of such a nature that the courts could hold, without inspection, that they should not be disclosed. The documents in issue in the instant case did not fall within this category.

Marks v. Beyfus (1890) 25 Q.B.D. 494 and Director of Consumer Affairs v. Sugar Distributors Ltd.[1991] 1 I.R. 225 considered.

5. That the principle of public policy which protected from discovery communications between lawyer and client made in contemplation of litigation had no application to documents submitted by an investigating garda to the notice party for the purposes of obtaining his decision as to whether or not a prosecution should be instituted.

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