O'Brien v Minister for Defence, Ireland and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Court: High Court

(S.C.)

(H.C.)

O'Brien

and

Minister for Defence, Ireland and the Attorney General

- Public interest - Diplomatic privilege - Statutory privilege - Defence Forces -Reports of UN and military inquiries into death of soldier in Lebanon - Power of Oireachtas to enact legislation conferring privilege of exemption from production on specified categories of documentary or other evidence - Defence Act, 1954 (No. 18) - Rules of Procedure (Defence Forces), 1954 (S.I. No. 243).

Rule 121 of the Rules of Procedure (Defence Forces), 1954, provides that the proceedings of a court of inquiry and any confession, statement or answer to any question made or given at a court of inquiry shall not be admissible against any person subject to military law, nor shall any evidence respecting the proceedings of a court of inquiry be given against any such person except upon his trial for committing the civil offence of perjury. Rule 122 provides that a finding of a court of inquiry shall not be admissible in evidence nor shall any question be asked of any witness in relation thereto. The plaintiff instituted proceedings arising out of the death of her husband from gunshot wounds suffered on 6 December, 1986, in the course of his duties as a member of the defence forces. The plaintiff alleged that the injuries which her husband sustained were the result of the negligence and breach of duty of the defendants. In 1991, the Master of the High Court made an order directing the defendants to make discovery on oath and it was provided that the affidavit be sworn by Anne O'Neill. The plaintiff was dissatisfied with the content and the manner in which the affidavits were drafted and brought a further motion in the High Court to direct the defendants to make further and better discovery of the documentation in their possession relating to the death of Private William O'Brien and to specify by enumeration each and every document with the general classification of privilege claimed in respect of each numbered document. The relief sought was refused by the High Court (see [1995] 1 I.R. 568 [1995] 1 ILRM 22) and the plaintiff ;appealed. While originally a United Nations inquiry report was sought, it was conceded by the plaintiff that such documentation is privileged. Attention then focused on the findings and report of the court of inquiry held in pursuance of the provisions of the Defence Act, 1954. It was submitted by the defendants that the documents were also privileged by virtue of...