Breslin and Others v McKenna and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 20 March 2008
• Neutral Citation: [2008] IEHC 122
• Court: High Court
• Docket Number: No. 403 SP/2007
• Date: 20 March 2008

[2008] IEHC 122

THE HIGH COURT

No. 403 SP/2007

Breslin & Ors v McKenna & Ors

BETWEEN

MARK CHRISTOPHER BRESLIN, CATHERINA ANNE GALLAGHER, MICHAEL JAMES GALLAGHER, AUDREY MARTHA MOONEY, CAROLINE FAITH MARTIN, EDMUND WILLIAM GIBSON, ELIZABETH CATERINE GIBSON, ROBERT JAMES GIBSON, WILLIAM JAMES GIBSON, WILMA SELINA KYLE, STANLEY JAMES McCOMBE, GERALD GEORGE McFARLAND, MARIAN ELAINE RADFORD, PAUL WILLIAM RADFORD, COLIN DAVID JAMES WILSON, DENISE FRANCHESCA WILSON, GARRY GODFREY CHARLES WILSON, GERALDINE ANN REBECCA WILSON AND GODFREY DAVID JAMES WILSON

PLAINTIFFS

AND

SEAMUS McKENNA, JOHN MICHAEL HENRY McKEVITT, LIAM CAMPBELL, MICHAEL COLM MURPHY AND SEAMUS DALY

DEFENDANTS

EXPLOSIVE SUBSTANCES ACT 1883 S3

CRIMINAL LAW (JURISDICTION) ACT 1976 S4

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S19

COURTS OF JUSTICE ACT 1924 S29

KELLY v IRELAND 1986 ILRM 318

CHAMBERS v TIMES NEWSPAPERS LTD & WITHEROW 1999 2 IR 424 1999 1 ILRM 504

BRESLIN & ORS v MCKENNA & ORS 2007 NICA 14

RSC O.3 r22

CRIMINAL PROCEDURE ACT 1967

GREENCORE GROUP PLC & ORS v MURPHY & ORS 1995 3 IR 520 1996 1 ILRM 210 1995/18/4642

KELLY v IRELAND 1986 ILRM 318

RSC O.86 r14

RSC O.86 r17

OFFENCES AGAINST THE STATE ACTS 1939 to 1972 SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 r25

OFFENCES AGAINST THE STATE ACT 1939 S41

RSC O.31 r29

ALLIED IRISH BANKS v ERNST & WHINNEY 1993 1 IR 375

MIN FOR JUSTICE & COURTS SERVICE v INFORMATION COMMISSIONER 2001 3 IR 43 2002 2 ILRM 1 2002/17/4076

TAYLOR & ANOR v DIRECTOR OF THE SERIOUS FRAUD OFFICE 1999 2 AC 177

MAHON v RAHN 1998 QB 424

CONSTITUTION ART 34.1

CORK PLASTICS v INEOS COMPOUNDS (UK) LTD 2008 1 ILRM 174

ROUSSEL v FARCHEPRO LTD 1999 3 IR 567

DPP v MURPHY 2005 2 IR 125

FREEDOM OF INFORMATION ACT 1997 S46

COURTS OF JUSTICE ACT 1924 S33

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S7

RSC O.86 r1

RSC O.86 r17(2)

HOME OFFICE v HARMAN 1983 1 AC 280

R v BROWNE (WINSTON) 1998 AC 367

R v WARD 1993 1 WLR 619

R v KEANE 1994 1 WLR 746

PRACTICE NOTE; (CRIMINAL EVIDENCE: UNUSED MATERIAL) 1982 1 AER 734

WATSON v M'EWAN 1905 AC 480

EX PARTE COVENTRY NEWSPAPERS LTD 1993 QB 278

MAHON v RAHN UNREP BROOKE 19.6.1996 (UK)

MUNSTER v LAMB 1883 11 QBD 588

RSC O.24 r14A (UK)

CRIMINAL PROCEDURES INVESTIGATIONS ACT 1996 S17(3)(b) (UK)

RSC O.31 r19

ESSO AUSTRALIA RESOURCES LTD v PLOWMAN 1995 183 CLR 10

PATRICK v CAPITAL FINANCE PTY LTD (NO 4) 2003 FCA 436

PRACTICE & PROCEDURE

Documents

Disclosure - Evidence - Nature and purpose of evidentiary documents used in criminal proceedings - Books of evidence - Transcript of evidence at criminal trial - Discovery and production of documents used in prior criminal proceedings sought by plaintiffs for inspection in aid of civil litigation in different jurisdiction - Whether implied undertaking against any collateral use of books of evidence and transcript - Whether absolute prohibition on disclosure of transcript to third party for collateral use - Whether discretion vested in court to release defendant from implied undertaking in respect of books of evidence for collateral use - Circumstances in which such discretion may be exercised - Existence of special circumstances and satisfaction that no injustice to person giving discovery would ensue - Rules of the Superior Courts 1986 (SI 15/1986), O 3, r 22, O 31, rr 19 and 29, O 86, rr 14 and 17 - Roussel v Farchepro Ltd [1999] 3 IR 567 followed; Cork Plastics v Ineos UK Ltd [2008] 1 ILRM 174 applied; Kelly v Ireland [1986] ILRM 318 considered; Chambers v Times Newspapers Ltd [1999] 2 IR 424 distinguished -Disclosure granted (2007/403SP - Gilligan J - 20/3/2008) [2008] IEHC 122

Breslin v McKenna

Facts: Following on from prosecutions taken in the Republic of Ireland relating to individuals prosecuted for the Omagh bombing before the Special Criminal Court, in civil proceedings in Northern Ireland transcripts and books of evidence were sought relating to the Special Criminal Court trial by order of the High Court of Northern Ireland. A declaration was sought inter alia that there was no impediment under Irish law precluding the use of such documents and a declaration that the documents were not subject to an implied undertaking affecting their use. The issue arose as to the application of fair procedures.

Held by Gilligan J. that the books of evidence were in the control of the defendants and not the Special Criminal Court. They were furnished to the defendants pursuant to an implied undertaking not to be used for collateral purposes. The Court in the exercise of its discretion could waive the undertaking. Each of the defendants would not be committing any contempt of court in discovering and producing the books of evidence. There was no impediment in law to the defendants discovering and producing the books of evidence the subject of orders of the High Court in Northern Ireland.

Reporter: E.F.

Mr. Justice Gilligan

1 The plaintiffs in these proceedings are citizens of Northern Ireland and reside therein, they are victims of the bomb blast which occurred in the town of Omagh, Co. Tyrone, on 15^th August, 1998, (hereinafter referred to as the "Omagh bombing"), and have suffered bereavement and personal injury as a result thereof.

2 The first named defendant was, on 8^th December, 2004, found guilty at a sitting of the Special Criminal Court of the unlawful and malicious possession of explosive substances, with intent to endanger life or cause serious injury to property contrary to s. 3 of the Explosive Substances Act 1883 as substituted by s. 4 of the Criminal Law (Jurisdiction) Act 1976. He was sentenced to six years imprisonment as and from 15^th June, 2003. The first named defendant did not appeal his conviction in this regard and has now been released from prison.

3 The second named defendant was convicted on 7^th August, 2003, of membership within the State of an unlawful organisation styling itself "The Irish Republican Army", contrary to s. 21 of the Offences against the State Act 1939, as amended, and was sentenced to a term of imprisonment for a period of six years. He was further convicted by the Special Criminal Court on 7^th August, 2003, of directing the activities of an illegal organisation styling itself "The Irish Republican Army", in respect of which a suppression order has been made pursuant to s. 19 of the Offences Against The State (Amendment) Act 1939, and was sentenced to a term of imprisonment for a period of twenty years, as and from 29^th March, 2001. The second named defendant appealed his conviction to the Court of Criminal Appeal which, on 9^th December, 2005, dismissed the appeal. Subsequently, on 17^th July, 2006, the second named defendant was granted a certificate to appeal to the Supreme Court on a point of law pursuant to s. 29 of the Courts of Justice Act 1924, and this appeal was heard in early February, 2008, by the Supreme Court. Judgment is awaited in this appeal.

4 The third named defendant was, on 24^th May, 2004, convicted by the Special Criminal Court on two counts of membership within the State of an unlawful organisation and was sentenced to four years imprisonment on both counts, the sentences to run concurrently from 1^st May, 2001. The third named defendant has now been released from prison.

5 The fourth named defendant was convicted on 22^nd January, 2002, at the Special Criminal Court of unlawfully and maliciously conspiring with another person, not before the court, between 13^th and 16^th August, 1998, at Dundalk, County Louth, to cause an explosion of a nature likely to endanger life or cause serious injury to property within the State or elsewhere contrary to s. 3 of the Explosives Substances Act, 1883, as substituted by s. 4 of the Criminal Law (Jurisdiction) Act, 1976. He was sentenced to fourteen years imprisonment. His conviction was overturned by the Court of Criminal Appeal on 21^st January, 2005, and a retrial, which is awaited, was directed.

6 The fifth named defendant pleaded guilty to a charge of membership within the State of an unlawful organisation styling itself "The Irish Republican Army" on 2^nd March, 2004, and was sentenced to three years and six months imprisonment and has since been released from prison.

7 The circumstances of the Omagh bombing are such that shortly after 3 p.m. on Saturday, 15^th August, 1998, a massive car bomb exploded at Market Street, Omagh, County Tyrone, Northern Ireland, which resulted in the deaths of 29 people and personal injuries of varying degrees of severity to over 300 others. In addition, extensive damage occurred to property in the town centre. The outrage was one of the worst atrocities in Northern Ireland occurring at a time when the town was crowded with shoppers and visitors.

8 The plaintiffs' herein commenced proceedings against the defendants' in the High Court of Justice in Northern Ireland, (Queens Bench Division) on 10^th August, 2001, claiming damages, inter alia, for the intentional infliction of harm, trespass to the person, conspiracy to commit trespass to the person and/or conspiracy to injure arising from the Omagh bombing. A trial date has now been fixed for the 7^th day of April, 2008.

9 For the purposes of prosecuting the Omagh proceedings, the plaintiffs' applied to the Special Criminal Court for the production of the transcripts of evidence and Books of evidence from the criminal proceedings as taken against the various defendants. In the course of a ruling on the 7^th day of February, 2005, the Special Criminal Court noted that the Director of Public Prosecutions and the Attorney General in this jurisdiction had both indicated that as far as they were concerned the release by any one defendant, or defendants, of documents in their possession, power or procurement to the plaintiffs' does not cause them any concern....