Burns v District Judge O'Neill and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Mally
• Judgment Date: 18 August 2015
• Neutral Citation: [2015] IEHC 553
• Court: High Court
• Date: 18 August 2015

[2015] IEHC 553

THE HIGH COURT

[No. 236 J.R./2014]

Burns v District Judge O'Neill & Ors

JUDICIAL REVIEW

BETWEEN

MICHAEL BURNS

APPLICANT

AND

DISTRICT JUDGE JOHN O'NEILL, THE MINISTER FOR JUSTICE, EQUALITY AND DEFENCE, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Crime & Sentencing – Criminal Justice (Mutual Assistance) Act 2008 – European Convention on Mutual Assistance in Criminal Matters, 1959 – Violation of Human Rights – Fair trial – Fair procedures – European Convention on Human Rights – Audi alteram partem

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent directing the provision of certain of the applicant's medical records to the second named respondent for transmission to the Police Service of Northern Ireland (PSNI). The applicant also sought declarations to the effect that the refusal to adjourn his application for preparing the case after being put on notice of request for medical records and the release of medical records would be a breach of fair procedures, the constitutional right to fair trial, and fair trial under art.6 of the European Convention on Human Rights. The PSNI contended that the documents that they requested pertained to a gunshot wound suffered by the applicant prior to his admission in the prison in 1977 and thus were crucial for the investigation of the applicant's offences of attempted murder of a prison officer in 1977.

Ms. Justice Iseult O'Malley refused to grant an order of certiorari to the applicant and other ancillary reliefs thereto. The Court held that there was no substantive evidence put forward for breach of the right of privacy or human rights. The Court observed that the designated judge under s. 63 of the Criminal Justice (Mutual Assistance) Act 2008 was neither administering justice nor adopting an investigative role and the sole function of the judge was to receive evidence and pass it on to the second named respondent. The Court further held that said s. 63 of the 2008 Act merely defined a procedure and did not attribute any kind of fact-finding discretion to the judge and thus, there was no breach of the right to fair trial of the applicant. The Court opined that the applicant had the right to be heard before the second named respondent and not before the first named respondent whose jurisdiction was limited by the Act itself in receiving and then transmitting the evidence.

1 JUDGMENT of Ms. Justice Iseult O'Mally delivered the 18th day of August 2015.

Introduction

2 1. This is anapplication for certiorari and declaratory relief in respect of a decision made by the first-named respondent on foot of an application by the second-named respondent ("the Minister") pursuant to s. 63 of the Criminal Justice (Mutual Assistance) Act 2008 ("the Act"). The decision was to direct the provision of certain of the applicant's medical records to the Minister for transmission to the Police Service of Northern Ireland ("the PSNI").

3 2. The applicant argues that release of his records would amount to a breach of his rights under the Constitution and under the European Convention on Human Rights ("the ECHR"). He also submits that the decision was made in breach of his right to fair procedures, in that his legal representative was refused an adjournment sought for the purpose of making submissions on these issues.

Background facts

4 3. On 12 ^th April, 2013, the applicant was charged in Northern Ireland with the attempted murder of a prison officer on 28 ^th June, 1977, and with the possession of a firearm and ammunition with intent to endanger life on the same date.

5 4. That prosecution has been the subject of three sets of judicial review proceedings in Northern Ireland. This Court was informed that two cases have been determined against the applicant. The first related to a claim by the applicant that his prosecution was unlawful in the light of certain assurances the applicant claims were given to him in 2003. The second concerned a separate claim that medical records, relating to his medical condition when arrested by the PSNI in April, 2013, were confidential and protected by Article 8 of the ECHR. This latter application was initiated in May, 2013. The third relates to the legal aid facilities available to the applicant.

6 5. Between November, 1977 and February, 1987 the applicant was serving a sentence in prison in this jurisdiction.

7 6. On 10 ^th December, 2013, the Public Prosecution Service of Northern Ireland issued a request to the Minister seeking, inter alia, the release to the PSNI of the following records held by the Prison Service of this jurisdiction:

"all medical and other records which show or tend to show that, prior to his admission to prison in the Republic of Ireland in 1977, Michael Burns had suffered a gunshot wound or other injury to either of his hands."

8 7. The reason given for seeking this documentation was to assist the PSNI in the investigation of the offences referred to above. (There appears to be another investigation in train in respect of the applicant's suspected involvement in another offence but the medical records do not seem to be relevant to that matter.) It was stated in the letter of request that, in the course of the attempted murder, the intended victim fired a revolver and wounded one of his attackers. Medical records obtained by the PSNI in Northern Ireland showed that at some time prior to his arrest in July, 2013 the applicant had suffered a gunshot wound to his hand.

9 8. The letter finished with assurances that:

10 · The assistance requested could be obtained under the law of Northern Ireland;

11 · Any evidence furnished in response to the request would not, without the consent of the Minister, the nominated judge or the witness, be used for any purpose other than that specified in the request and would be returned when no longer required for that purpose; and

12 · that any suspect in the case would be able to challenge any evidence provided by the Irish authorities if the material was used at trial.

13 9. The Minister then requested the President of the District Court to nominate a judge of that Court to receive the evidence in question.

14 10. The applicant was notified by the Chief State Solicitor's Office of the request by letter dated 18 ^th March, 2014. His solicitors had been written to four days earlier. He was also informed that the application under the Act was listed for hearing on 1 ^stApril, 2014. The applicant then gave instructions to his solicitors in Northern Ireland to oppose the application, and sought an extension of his legal aid in the Northern Ireland proceedings to cover representation in the District Court for the purposes of the hearing.

15 11. A Dublin-based solicitor, Mr. Finucane, was then instructed to attend in the District Court to apply on behalf of the applicant for an adjournment, on the basis that the legal aid application was pending and that it was necessary to prepare submissions on the applicant's rights under the Constitution and under the ECHR.

The District Court hearing

16 12. A transcript of the hearing on 1 ^stApril, 2014, has been exhibited in the papers furnished to this Court.

17 13. Mr. Finucane applied for an adjournment, stating that he had only received "detailed instructions" on the previous day. He said that a number of questions arose from those instructions which, he considered, might merit the attention of counsel. The application for the extension of legal aid was still pending.

18 14. Mr. Finucane drew the Court's attention to s. 3 of the Act and in particular to s. 3(1)(b)(ii)(II), which deals with the refusal of assistance under the Act where the provision of such assistance might result in a contravention of the ECHR. He submitted that there was at least prima facie evidence that the applicant was at risk of a violation of his Article 6 ("fair trial") rights by reason of delay.

19 15. The application for an adjournment was opposed by counsel for the Minister. She pointed out that the applicant's solicitors had been written to on 14 ^th March, 2014. She submitted that for the applicant to come into court at the last minute, without any notice to her side, when the Deputy Governor of Portlaoise Prison was present with the requested material, was in itself grounds for refusing an adjournment.

20 16. It was further submitted that the application before the Court related to evidence. The Northern Ireland authorities had given an undertaking that the applicant would have the opportunity of challenging that evidence, on the basis of abuse of process or any other argument of that nature, in the court of trial. In this regard counsel referred to the decision of Peart J. in Agrama v. Minister for Justice & Ors [2013] IEHC 15 as establishing that that was the proper venue for such arguments.

21 17. Counsel further submitted that normally there was no notification given of applications under the Act for material evidence to be handed over to another jurisdiction. However, because the instant application involved medical records, and having regard to the judgments of the Supreme Court in Brady v. Haughton [2006] 1 I.R. 1, notification had been given to the applicant. Any issue arising, therefore, related to Article 8 and not Article 6. She submitted that the judge was going to have to conduct a balancing exercise and consider whether the applicant's right to privacy and his Article 8 rights under the ECHR were outweighed by the necessity to disclose the material in the interests of justice. However, it was ultimately a matter for the first-named respondent whether he wished to proceed or to adjourn.

22 18. The first-named respondent then inquired of counsel as to whether she would, on an adjourned hearing, still make the...