L.K. (No.1) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 30 November 2016 |
| Neutral Citation | [2016] IECA 361 |
| Date | 25 November 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 361 H.C. No. 2016/864JR,[C.A. No. 507 of 2016] |
[2016] IECA 361
Edwards J.
Birmingham J.
Mahon J.
Edwards J.
Neutral Citation Number: [2016] IECA 361
Appeal No. 2016/507
H.C. No. 2016/864JR
THE COURT OF APPEAL
CIVIL
Disclosure – Compellable records – Third party discovery – Appellant seeking judicial review – Whether mutual assistance request was de facto an attempt to obtain disclosure on foot of a mandatory order amounting in effect to third party discovery of the appellant's medical records
Facts: The appellant will be a witness in a pending criminal trial against a defendant who was a UK citizen accused of the murder of an Irish citizen. The defense legal team requested the Crown Prosecution Service (CPS) in the UK, pursuant to its obligations under the UK's Criminal Procedure and Investigations Act 1996, to make disclosure of the appellant's medical records, presumably with a view to the defendant's lawyers attacking the appellant's reliability in cross-examination when she testifies at the trial. The appellant, having been notified of the request, indicated her objection to the said records being handed over. On the 27th of October 2016 and on 3rd of November 2016 a District Court judge ordered pursuant to s. 63 of the Criminal Justice (Mutual Assistance) Act 2008 that the records be handed over on foot of a request that had been received by the respondent, the Minister for Justice and Equality, from the UK authorities pursuant to the provisions of the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union signed at Brussels on the 29th of May 2000 (the Convention). The appellant then applied to the High Court for various declarations, orders of certiorari, an injunction and an order of mandamus, as well as interim relief, in a challenge by way of judicial review to the District Court judge's said orders, on the basis that the records the subject matter of the orders were not compellable records. On the 21st of November 2016, the High Court (Humphreys J) refused to grant the appellant relief by way of judicial review. The appellant appealed to the Court of Appeal against the judgment and order of the High Court. The case made in the High Court, and again in the Court of Appeal where the arguments were reiterated, was based on a single umbrella argument to the effect that the documents being sought did not amount to compellable evidence on a correct application of s. 64(1) of the 2008 Act and accordingly that the claim of privilege should have been upheld and that the District Court Judge acted ultra vires the statute in failing to do so. The first component of the umbrella argument suggested that the mutual assistance request was de facto an attempt to obtain disclosure on foot of a mandatory order amounting in effect to third party discovery of the appellant's medical records for use in a trial in circumstances where there is a clear line of Irish jurisprudence to say that there is no power to do so under Irish law. The second component was the contention that in any event production of the records would in the circumstances of the case breach the appellant's right to privacy guaranteed under Article 40.3 of the Constitution and/or her right to respect for her private life guaranteed under Article 8 European Convention on Human Rights and Fundamental Freedoms ("ECHR"), and that accordingly their production was not compellable under Irish law.
Held by Edwards J that he would uphold the interpretation of the High Court judge with respect to s. 64(1)(a).
Edwards J held that he would uphold the High Court's judgment in regard to the first component of the umbrella argument. Edwards J then held it to be necessary for the Court to reconvene to hear and determine the second component of the appellant's umbrella argument.
Appeal dismissed on one ground.
This appeal is against the judgment and order of the High Court (Humphreys J.) dated the 21st of November 2016 refusing an application for various declarations, orders of certiorari, an injunction and an order of mandamus, as well as certain interim relief, by way of judicial review.
The facts of the case are that on the 13th May, 2016 a letter of request was received by the Minister from the UK authorities pursuant to the provisions of the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union signed at Brussels on the 29th of May 2000 (the Convention) for the taking of evidence in relation to a criminal trial against a named defendant who is a UK citizen accused of the murder of an Irish citizen whose body has never been located.
The evidence relates essentially to medical information concerning the appellant who was a witness at a previous trial of the said defendant that was aborted for unrelated reasons and who will be a witness in the retrial. In the first trial, in which the appellant gave her evidence by video link from this jurisdiction, it was put to her in cross-examination that her evidence was unreliable due to a medical issue, a matter she vehemently denied.
In preparation for the forthcoming re-trial the defence legal have now requested the Crown Prosecution Service (C.P.S.) in the UK, pursuant to its obligations under the UK's Criminal Procedure and Investigations Act, 1996, to make disclosure of the appellant's medical records, presumably with a view to the defendant's lawyers renewing their attack on the appellant's reliability in cross-examination of her when she testifies again at the re-trial.
The Convention is given effect in Irish law by the Criminal Justice (Mutual Assistance) Act 2008, (the 'Act of 2008'), and the relevant provisions in the context of this case are s. 63 and s. 64 respectively. I will set these out in full in the next section of this judgment. However, in brief summary s. 63 allows the Minister to request the nomination of a District Judge to receive the evidence to which the request relates, and for that purpose the District Judge is given all the powers of the District Court in criminal proceedings including its powers to secure the attendance of witnesses and the production of documents, the taking of evidence on oath and to compel witnesses to give evidence or to produce documents or other things. S.64 then deals with the claiming of privilege by witnesses in respect of oral evidence to be given by them or in respect of documents they would otherwise be required to produce in the course of the s.63 procedure.
On 19th September, 2016, the Minister requested the nomination of a judge of the District Court to take the evidence in question. Judge John O'Neill was nominated for that purpose. The matter then came before Judge O'Neill in Court No 8 in the Criminal Courts of Justice on 20th October, 2016.
Three witnesses were summoned to appear on that occasion and to bring with them medical records pertaining to the appellant. The witnesses in question were a religious sister from a particular charitable organisation that provides a certain form of medical treatment, the appellant's general practitioner and a patient services officer with the H.S.E., based at a particular hospital where the appellant was treated following a road traffic accident. None of these witnesses are intended to be witnesses at the trial of the said defendant, and in which the appellant is expected to be called as a witness. They were summoned before the District Court solely to produce medical records pertaining to the appellant so that these might be transmitted to the C.P.S. in the UK to enable that body to comply with its disclosure obligations.
The appellant was duly notified, as the law now requires, of her entitlements in respect of claiming privilege and the appellant communicated both to the members of An Garda Siochána and other representatives of the State who canvassed her views that she was vehemently opposed to the release of her medical records and wished to claim privilege over them. It is understood that this is based on medical confidentiality and her constitutional right to privacy in respect of intimate and personal matters such as her state of health both past and present, as well her right to respect for her private life guaranteed under Article 8 of the European Convention on Human Rights and Fundamental Freedoms ('the ECHR'). Moreover, she caused it to be made known to each of the three witnesses who had been summoned, in the context of the mutual assistance procedure, for the purpose of producing her medical records that she does not consent to their release.
Although the appellant was not herself legally represented on the 20th of October, and did not personally make any legal submissions to the District Judge, the issue of the privilege she was asserting was debated at some length before Judge O'Neill because the three witnesses who had been summoned to produce her records had all, understandably, thought it prudent to be legally represented in circumstances where she had made known to them that she was not consenting to her records being released. In the course of that debate it was suggested to Judge O'Neill by counsel representing the three witnesses that privilege had been validly asserted and could be relied upon as production of the documents being sought was not compellable in this jurisdiction. In support of that submission certain jurisprudence was opened to Judge O'Neill including The People (Director of Public Prosecutions) v Sweeney [2001] 4 I.R. 102; D.H. v His Honour Judge Groarke & Ors [2002] 3 I.R. 522; J.F. v District Judge Reilly & Ors [2008] 1 I.R. 753 and The H.S.E. v His Honour Judge White & Ors [2009] IEHC 242 (Unreported, High Court, Edwards J, 22nd May 2009).
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