Church v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: MR JUSTICE DECLAN COSTELLO,
• Judgment Date: 18 March 1997
• Neutral Citation: [1997] IEHC 210
• Docket Number: [1994 No. 602 P],No.602P 1994
• Court: High Court
• Date: 18 March 1997

[1997] IEHC 210

THE HIGH COURT

No.602P 1994

CHURCH v. COMMISSIONER OF AN GARDA SIOCHANA

BETWEEN

COLM CHURCH AND RAY MURRAY

Plaintiffs

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

Defendant

TRANSCRIPT OF JUDGMENT

Citations:

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 40

POLICE FORCES AMALGAMATION ACT 1925 S8

DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS LTD 1991 ILRM 395

BURKE V CENTRAL INDEPENDENT TELEVISION PLC 1994 2 IR 61

MCNEILL V COMMISSIONER OF AN GARDA SIOCHANA UNREP SUPREME 30.7.1996 1996/13/4146

Synopsis

Garda Síochána

Commissioner's power to order disclosure of informants; "Crime Investigation Techniques" manual; privilege; delay; danger to informant and plaintiff's families. Held: Commissioner's order for disclosure valid; plaintiffs required to disclose name(s) of informant(s) (High Court: Costello J. 18/03/1997)

Church and Murray v. Commissioner of An Garda Síochána - [1997] 3 IR 231

1 DELIVERED BY THE PRESIDENT OF THE HIGH COURT, THE HONOURABLE MR JUSTICE DECLAN COSTELLO, ON 18TH MARCH 1997

APPEARANCES

For the Plaintiffs:

Eoin McGonigal SC

Shane Murphy BL

Instructed by

Noel G. Hughes

For the Defendant:

Rory Brady SC

Eamonn Leahy BL

Instructed by

Chief State Solicitor

2 The Plaintiffs are members of An Garda Siochana and in 1988 they were both detective gardai serving in the Drugs Squad in Harcourt Street. On 12th September 1988 they carried out a search of premises in Morehampton Road, Donnybrook, known as Sachs Hotel, and also carried out a search in Cabinteely in the home of Miss Brenda Flood, an employee of the proprietor of Sachs Hotel. The search was made pursuant to a warrant which was issued following confidential information which the gardai had obtained from an informant. Mr Smyth, a director of the Company which owns Sachs Hotel, telephoned Garda Church and said he considered that the information which he (Garda Church) had been given was malicious. Mr Smyth asked the garda for the informant's name but this information was refused.

3 Later, in August 1991, proceedings were instituted in the High Court by Genport Limited, the Company which owns Sachs Hotel, and by Miss Flood against the Plaintiffs in this action and the State, claiming damages arising from what was claimed was an illegal search.

4 In a document entitled "Collator Record" Garda Church, within three days of the search, wrote that the information which he had received may have been given in a deliberate attempt to discredit Miss Flood and her employer. And on 20th September 1988 Mr McNally, Solicitor, with his two clients went to the Central Detective Unit and alleged that the report made to the Plaintiffs was false and asked for the identity of the informant. This request was refused. However, an investigation was then carried out to see whether or not a crime may have been committed by maliciously giving false information to the gardai. During this investigation, which took place later in the year 1988 and into 1989, the Plaintiffs refused to give the name of their informant. Disciplinary proceedings against the Plaintiffs for their refusal were threatened but on 20th October 1989 the Commissioner personally directed that none should be commenced unless he so directed.

5 On 26th March 1991, a few days prior to the institution of the proceedings to which I have already referred, Mr McNally wrote to the Commissioner stating that new information was available to show that the information had been given maliciously. Mr McNally wrote again on 16th March 1993 making reference to documents which had been made available on discovery. Following this, a new investigation was authorised on 9th June 1993 with a view to seeing whether or not a criminal offence had been committed.

6 By an official circular issued by the Assistant Commissioner, reference 7L/93, dated 7th May 1993 and headed "Intelligence Gathering and Reporting" the Assistant Commissioner dealt expressly with the question of the disclosure of an informant's identity by members of the Force. The circular pointed out that the identity of an informant must not be disclosed save as required by law and added:

"Even though the identity of an informant must not be disclosed save as required by law, it must be remembered that information in relation to the commission of crime which comes into the possession of a Garda is not his personal property, to be dealt with by him as he will. Consequently, the use of informants and information must never be contrary to legal requirements or the regulations of the Force. In the interests of justice, or of good order and discipline within the Force, it may become necessary that an informant's identity be disclosed. In such case, with the Commissioner's authority, the disclosure will be to a Chief Superintendent nominated by Assistant Commissioner "C" Branch."

7 In the course of the new investigation both Plaintiffs again refused to answer any questions relating to the investigation which they had carried out in September 1988 and in relation to the name of their informant.

8 By order of 24th December 1993 the Commissioner required both these Plaintiffs to disclose to Chief Superintendent Reid the identity of the person or persons who had supplied to them information upon which warrants were obtained to search the Hotel and Miss Flood's home. Because this order of the Commissioner is in the centre of this case I should read it in full:

"I, Patrick J. Culligan, Commissioner of An Garda Siochana, hereby direct you to disclose to Chief Superintendent Michael Reid, Crumlin, the identity of the person(s) who supplied to you the information upon which warrants were obtained to search (a) Sachs Hotel, Morehampton Road, Donnybrook, and (b) 3 Sycamore Drive, Cabinteely on 12th September 1988."

"While this information may have been received by you in good faith, there are circumstances to indicate that it may have been supplied for malicious motives."

"The Director of Public Prosecutions has been consulted in relation to this matter and has decided that a prosecution for an offence against you should not be instituted."

"This information is required by me in order to ensure proper direction and control of the Force and, in particular, the proper investigation of alleged public mischief by a person or persons unknown."

"Failure or refusal by you to supply this information on or before 11th January, 1994 will be considered by...