Grainne Nic Gibb v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] IEHC 238
• Docket Number: Record No. 7414 P/1999
• Court: High Court
• Date: 16 May 2013

[2013] IEHC 238

THE HIGH COURT

Record No. 7414 P/1999

Nic Gibb v Min For Justice & Ors

Between/

GRAINNE NIC GIBB

Plaintiff

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

Defendants

MURPHY v DUBLIN CORP 1972 1 IR 215

AMBIORIX LTD v MIN FOR THE ENVIRONMENT (NO 1) 1992 1 IR 277

BREATHNACH v IRELAND (NO 3) 1993 2 IR 458

KEATING v RADIO TELEFIS EIREANN UNREP KEARNS 29.7.2013 2013 IEHC 393

O'KELLY, IN RE 1974 108 ILTR 97

BURKE & ORS v CENTRAL INDEPENDENT TELEVISION PLC 1994 2 IR 261

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO COMPANY 1882 11 QBD 55

Evidence law - Practice and procedure - Discovery - Public Interest - Confidentiality - Documents - Inspection - Redaction - Whether objections to disclosure would be entertained on public interest and confidentiality grounds

Facts: The plaintiff was the partner of a person shot dead by members of An Garda Siochana in 1998. The plaintiff sought an order requiring the defendants to produce for inspection certain documents over which a claim of privilege was asserted. The order required the defendants to make discovery under ten headings and specific objections were raised as to an Operational Plan, duty rosters and a report of a file. The Court considered arguments as to public interest privilege and confidentiality.

Held by O” Malley J. that the plea of privilege had to be evaluated with reference to the circumstances. While the operational plan was relevant, there was no risk that its disclosure would assist criminals. It was difficult to see how privilege could attach to the duty roster in respect of a day 15 years ago. The specific names of Gardaí could be redacted. The disclosure of the great bulk of the report was no longer confidential. Redaction could conceal the communication of certain paragraphs revealing intelligence.

Ms. Justice Iseult O'Malley

1 This is the plaintiff's motion for an order requiring the defendants to produce for inspection certain documents listed in an affidavit of discovery over which a claim of privilege has been asserted.

2 The plaintiff was the partner of the late Ronan MacLochlainn, who was shot dead by members of An Garda Síochána on the 1^st May, 1998. It is apparent that the shooting took place in the immediate aftermath of a failed attempt by Mr. MacLochlainn and five others to carry out an armed robbery on a Securicor van near Ashford in County Wicklow. The five other men were arrested, charged and convicted in relation to the matter.

3 In the substantive action the plaintiff claims damages on her own behalf and on behalf of the other statutory dependants of the deceased on foot of a claim that his death was caused by the wrongful acts of servants or agents of the defendants. It is pleaded that the defendants' servants or agents assaulted the deceased and/or were negligent and in breach of their duty in causing his death. Broadly speaking, the particulars of negligence and breach of duty can be categorised under two headings - failure to arrest the deceased before the robbery could be attempted and shooting him without adequate justification.

4 The history of the discovery process has been lengthy but for present purposes it suffices to say that an order for discovery made on the 7^th March, 2006 was eventually complied with by way of an affidavit sworn on the 22^nd December, 2011 and filed on the 3^rd January, 2012.

5 The order required the defendants to make discovery under ten headings as follows:

6 (i) Documents including memoranda written communications minutes of meetings and briefings held in advance of the intended operation the subject matter of these proceedings

7 (ii) Minutes of meetings and de-briefings which took place in the aftermath of the operation memoranda in connection with the said meetings and de-briefings and any other relevant or material documentation arising in connection with same

8 (iii) All documentation arising in connection with the discharge of firearms by members of An Garda Síochána on the relevant date

9 (iv) All documentation which arose in connection with the prosecution of those individuals who were arrested at the scene, to include copy books of evidence and the usual disclosure documentation arising in connection with criminal proceedings

10 (v) All ballistic reports and in particular copy notes, reports, memoranda and any other documentation in the possession of the Defendants and each of them, their respective servants or agents arising out of the analysis of ballistic material emanating as a result of the actions taken by members of An Garda Síochána on 1^st May 1998, referred to in the proceedings herein

11 (vi) Documentation in the form of guidelines training manuals instructions or rules and regulations issued to or circulated within An Garda Síochána in connection with the use of firearms and in particular the use of firearms in engagement/arrest situations

12 (vii) Documentation arising in connection with internal investigations carried out by An Garda Síochána into the circumstances of the shooting of Ronan McLoughlin [sic]

13 (viii) All documentation arising in connection with disciplinary proceedings taken as a result of the shooting of the said Ronan McLoughlin [sic] or documentation arising in connection with the decision not to institute such proceedings

14 (ix) Any photographs maps diagrams scene of crime photographs and post mortem photographs taken in connection with the incident the subject matter of these proceedings

15 (x) All documentation memoranda or material arising in connection with the training in the use of firearms by Gardaí who actually discharged firearms during the incident the subject matter of these proceedings.

16 6. The affidavit of discovery was sworn by Detective Chief Superintendent Kevin Donohoe. In it he objects to produce documents described as satisfying Category (i) above "on the grounds that the said documents are the subject of public interest privilege". The documents are listed as "Operational Plan" (6 pages); Garda Duty Rosters" (8 pages) and "Covering report of Garda Investigation File: D/Chief Superintendent Sean Camon" (106 pages). These documents are the subject of the instant application.

17 7. Mr. Donohoe also refers to the fact that the identities of three members of An Garda Síochána, in relation to whom there is material in Categories (vii) and (x), have been redacted on the grounds of public interest privilege and/or confidentiality. They are instead described as Garda X, Garda Y and Garda Z. No issue appears to be taken with this.

18 8. The other categories referred to in the order are dealt with as follows:

(ii) No such documents

(iii) No such documents

19 (iv) Book of Evidence People (DPP) v. Saoirse Breathnach, Pascal Burke, Philip Forsythe, Stephen Carney amp; Daniel McAlister

(v) Statements of D/Inspector Edwin Hancock and D/Sergeant Seamus Quinn

20 (vi) Various Garda Síochána manuals and circulars and an extract from An Garda Síocháana Code

21 (vii) Statements from 220 named witnesses including Garda X, Garda Y and Garda Z.

(viii) No such documents

(ix) Various photographs and a map

22 (x) Training records pertaining to Garda X, Garda Y and Garda Z.

23 9. In the course of correspondence it was made clear by the solicitor for the plaintiff that she was not satisfied that specific grounds of privilege had been adequately set out in the affidavit. By letter dated the 13^th March, 2012 the defendants responded that the claim had been set out in sufficient detail. They went on to say:

"The privilege being claimed is public interest privilege and all documents coming within the scope of that privilege are manifestly related to the operational systems of An Garda Síochána and with the detection and prevention of criminal activity."

24 The exchange of further detail or information in relation to this claim of privilege would be a matter for any substantive hearing on the question of privilege which might be granted by the Court."

25 10. On the 3^rd of April, 2012 the plaintiff served a Notice to Produce Documents seeking the production for inspection of all documents in Categories (ii) to (vi) plus the documents in respect of which privilege was claimed. Subsequently this motion was issued.

26 11. The plaintiff points out that the justification for the claim of privilege has not been put on affidavit but has, rather, simply been asserted. Since the burden of satisfying the court that the documents should not be produced rests with the party resisting production, it is therefore argued that the claim has not been made out. In the alternative, if there is a proper claim, the Court must engage in the exercise of balancing the public interest in disclosure (being the public interest in the administration of justice) and the public interest in non-disclosure (being the public interest in the confidentiality of the documents concerned).

27 12. The argument in favour of disclosure is made in a particular context. It is contended that the circumstances of the case make it obvious that the Gardaí were aware that a crime had been planned and yet they allowed the situation to develop rather than making arrests. In so doing they failed to have adequate regard for the safety of the deceased and failed to follow proper procedures. In the dangerous situation that was thus brought about they failed to have regard to regulations relating to the use of firearms and permitted Ronan MacLochlainn to be shot unnecessarily.

28 13. In arguing the necessity to obtain the disputed documents,...