Breslin and Others v McKenna and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Mr. Justice Geoghegan
• Judgment Date: 16 July 2008
• Neutral Citation: [2008] IESC 43
• Court: Supreme Court
• Docket Number: [S.C. No. 110 of 2008]
• Date: 16 July 2008

[2008] IESC 43

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J

Appeal No. 110/2008

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 CATHERINE 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/Respondents

and

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

Defendants/Appellants

KELLY v IRELAND 1986 ILRM 318

CRIMINAL PROCEDURE ACT 1967

OFFENCES AGAINST THE STATE ACT 1939 S21

OFFENCES AGAINST THE STATE ACT 1939 S19

COURTS OF JUSTICE ACT 1924 S29

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

H (D) v GROARKE & DPP 2002 3 IR 522 2002/12/2955

DPP v SWEENEY 2001 4 IR 102 2002 1 ILRM 532

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

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

RSC O.86

FREEDOM OF INFORMATION ACT 1997 S46

FREEDOM OF INFORMATION ACT 1997 S46(1)(a)(i)

RSC O.86 r14

RSC O.86 r17

RSC O.31 r29

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

DPP v MURPHY 2005 2 IR 125

CRIMINAL LAW

Documents

Production - Inspection - Civil proceedings - Transcripts of criminal proceedings - Books of evidence - Qualified production order made in civil proceedings outside jurisdiction - Whether impediment under Irish law preventing production of transcripts and books of evidence for inspection - Permission of court - Responsibility of courts to ensure due administration of justice - Discretion - Whether distinction where possibility of retrial - Risk of prejudice - Role of trial judge at retrial - Information necessary for exercise of discretion - Kelly v Ireland [1986] ILRM 318 and Cork Plastics (Manufacturing) v Ineos Compounds UK Ltd [2008] IEHC 93, [2008] 1 ILRM 174 considered - Defendants' appeal dismissed (110/2008 - SC - 16/7/2008) [2008] IESC 43

Breslin v McKenna

PRACTICE AND PROCEDURE

Documents

Production - Inspection - Civil proceedings - Transcripts of criminal proceedings - Books of evidence - Qualified production order made in civil proceedings outside jurisdiction - Whether impediment under Irish law preventing production of transcripts and books of evidence for inspection - Permission of court - Responsibility of courts to ensure due administration of justice - Discretion - Whether distinction where possibility of retrial - Risk of prejudice - Role of trial judge at retrial - Information necessary for exercise of discretion - Kelly v Ireland [1986] ILRM 318 and Cork Plastics (Manufacturing) v Ineos Compounds UK Ltd [2008] IEHC 93, [2008] 1 ILRM 174 considered - Defendants' appeal dismissed (110/2008 - SC - 16/7/2008) [2008] IESC 43

Breslin v McKenna

Facts: An appeal and cross-appeal was initiated from the decision of the High Court as to whether the defendants/ appellants were permitted under Irish law to comply with an order of the High Court and Court of Appeal of Northern Ireland requiring production for inspection of books of evidence and transcripts as to criminal trials in Ireland in the Special Criminal Court. The action related to civil proceedings taken by victims of the Omagh bombings. The High Court granted leave for production in certain circumstances but had refused to grant a declaration that there was no impediment under Irish law preventing the defendants from producing for inspection the transcripts.

Held by Geoghegan J. (giving reasons for concurrence with ex tempore decision of Supreme Court on 4th April, 2008 (Murray C.J. concurring, Hardiman J. concurring in part) that consent was to be given as to the books of evidence and transcripts and that the appeals be dismissed and the cross appeal allowed, such that the refusal to grant the declaration as to the transcripts be set aside. The rules for civil and criminal discovery were different. The Court had to accept that a fair trial would be conducted. Held by Hardiman J., concurring with the statements of law, holding that the factual basis of the claim had not been established.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Geoghegandelivered the 16th day of July 2008

giving reasons for concurrence with the judgment of the court pronounced ex tempore on 4 ^th April 2008

2 This was an appeal and cross-appeal from a judgment of the High Court (Gilligan J.) delivered on the 20 ^th March, 2008 on the issue of whether the defendants/appellants are permitted by the law of this jurisdiction to complywith orders made by the High Court of Justice in Northern Ireland and the Court of Appeal of Northern Ireland requiring production for inspection of books of evidence and transcripts relating to criminal trials against the appellants in this jurisdiction in the Special Criminal Court. The Northern Ireland proceeding is a civil action brought by victims and relatives of victims of certain criminal explosions carried out in Omagh, Co. Tyrone almost ten years ago and commonly known as "The Omagh Bombings". In the Northern Ireland action the respondents are seeking to establish that each of the appellants was actively involved in the Omagh bombings.

3 The Northern Ireland courts did not make an absolute order for the production of these documents but made the orders subject to there not being any rule of law in this jurisdiction against their production. Furthermore in the case of the fourth-named appellant the order was confined to those parts of the books of evidence and transcript relevant to telephone evidence given at the trials, a matter to which I will be returning.

4 Proceedings by way of special summons were issued in the High Court on behalf of the respondents on the 22 ^nd May 2007. In the special endorsement of claim on that summons five specific reliefs were sought. These were and are:

5 2 "1. A declaration that there is no impediment under Irish law preventing the defendants from producing for inspection the transcripts and books of evidence relating to the criminal proceedings concerning them before the Special Criminal Court.

6 2. A declaration that the documents supplied to the defendants for the purposes of their criminal trials before special criminal courts and in particular the transcripts and books of evidence are not subject to an implied undertaking that they would not be used for any other purpose other than the defence of the criminal proceedings.

7 3. If necessary an order granting the defendants leave to produce to the plaintiffs the transcripts and books of evidence furnished to them for the purposes of criminal proceedings before the Special Criminal Court.

8 4. If necessary, an order varying the terms of any implied undertaking pursuant to which the defendants were furnished with transcripts and books of evidence from the Special Criminal Court.

9 5. Furthermore or in the alternative and if necessary, a declaration that in so far as a rule of law precludes, prohibits or prevents the production of the transcripts and books of evidence from the Special Criminal Court pursuant to the Order of the High Court of Justice in Northern Ireland then the said rule of law is incompatible with the obligations of the Republic of Ireland under the European Convention of Human Rights and Fundamental Freedoms."

10 The judgment of Gilligan J. which is the subject of the appeal and cross-appeal herein was the judgment of the High Court delivered in those proceedings. For the sake of completion, I should mention that prior to the issue of those proceedings the respondents applied to the Special Criminal Court before which the various criminal proceedings had taken place for a ruling in their favour in relation to compliance with the Northern Ireland orders but that court took the view that it had no jurisdiction to deal with the matter. It is not relevant to consider whether that ruling was correct or not. It is now redundant in the light of the High Court proceedings. Irrespective of whether the ruling as to jurisdiction by the Special Criminal Court was correct or not, I am satisfied that the High Court had full jurisdiction to deal with the matter. That indeed was also the view of the Special Criminal Court based on case law to which I will be referring.

11 The judgment of Gilligan J. helpfully sets out the relevant criminal record of each of the respondents. For the purposes of this judgment, I will give a shorter summary.

12 Seamus McKenna, the first-named defendant, was convicted by the Special Criminal Court of unlawful and malicious possession of explosive substances with intent to endanger life or cause serious injury to property contrary to statute and was sentenced to six years imprisonment from the 15 ^th June 2003. That conviction was not appealed and Mr. McKenna is now out of prison.

13 John Michael McKevitt, the second-named defendant, was convicted of membership within the State of an unlawful organisation styling itself the Irish Republican Army contrary to section 21 of the Offences against the State Act, 1939, as amended, and was sentenced to a term of imprisonment for six years. He was further convicted by the Special Criminal Court of directing the activities of an illegal organisation styling itself the Irish Republican Army in respect of which a suppression order had been made pursuant to section 19 of the said Act of 1939, as amended, and on that offence he was sentenced to a term of twenty years imprisonment...