L.K. (No. 2) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 30 November 2016 |
| Neutral Citation | [2016] IECA 362 |
| Date | 30 November 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 362 Appeal No. 2016/507 H.C. No. 2016/864JR |
[2016] IECA 362
Neutral Citation Number: [2016] IECA 362
Appeal No. 2016/507
H.C. No. 2016/864JR
THE COURT OF APPEAL
CIVIL
Disclosure – Compellable records – Right to privacy – Appellant seeking judicial review – Whether production of records would breach the appellant’s right to privacy
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. On the 25th November 2016, the Court of Appeal upheld the High Court’s judgment in regard to the first component of the umbrella argument. It was indicated that the Court would then proceed to address and determine the second component of the umbrella argument.
Held by Edwards J that he was not satisfied that the District Court Judge in fact acted within jurisdiction in arriving at his decision that the records at issue were compellable; there was scant evidence that he had specific regard to the appellant’s constitutional right to privacy, or her right to respect for her private life, and even if he did so there was no evidence at all concerning what countervailing considerations he regarded as outweighing those rights. In failing to properly consider whether the proposed measure would breach the appellant’s rights, Edwards J concluded that the District Court Judge acted ultra vires his powers under the 2008 Act in making his orders under s. 63.
Edwards J held that he would allow the appeal, granting certiorari to quash the s. 63 orders and remit the matter to the District Court for a proper reconsideration of the mutual assistance request that takes due account of the appellant’s constitutional right to privacy and her right to respect for her private life arising under Article 8 ECHR, and any legitimate countervailing considerations advanced by the respondent.
Appeal dismissed on further ground.
On the 27th of October 2016 and on 3rd of November 2016 a District Court judge made orders pursuant to s.63 of the Criminal Justice (Mutual Assistance) Act 2008, requiring three separate witnesses to hand over medical records pertaining to the appellant on foot of a request that had been received by the respondent 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 records have been sought in the context of a pending criminal trial to be held shortly in the requesting state against a named defendant who is a UK citizen accused of the murder of an Irish citizen whose body has never been located. This pending trial will in fact be a re-trial. The appellant was a witness at a previous trial of the said defendant that was aborted for reasons unrelated to her evidence. The appellant 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 team have 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 appellant, having been notified of the request, indicated her objection to the said records being handed over, and her objection was communicated both to the persons holding her medical records and also to the District Court judge.
Notwithstanding the appellant's objections the District Court judge ordered that the records be handed over. The appellant then applied to the High Court for various declarations, orders of certiorari, an injunction and an order of mandamus, as well as certain 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 these orders were not compellable records.
This appeal is against the judgment and order of the High Court (Humphreys J.) dated the 21st of November 2016 refusing to grant the appellant relief by way of judicial review.
In my judgment dated the 25th of November 2016, in which my colleagues Birmingham J and Mahon J concurred, I indicated (at paras 14 -16) that the case made in the High Court, and again in this Court 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 Act of 2008 and accordingly the claim of privilege should have been upheld and 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.
This Court has already upheld the High Court's judgment in regard to the first component of the umbrella argument for the reasons given in the aforementioned judgment of the 25th November 2016.
It was indicated that if we held against the appellant in relation to the first issue we would then proceed, having heard any further submissions that the parties wished to make, to address and determine the second component of her umbrella argument. Having heard further submissions from both sides this further judgment now addresses that issue.
It is not controversial that by virtue of the mutual assistance request, the appellant's expectation that her medical records would be kept confidential, arising by virtue of the relationship between doctor /health service provider and patient in each instance, was potentially engaged.
However, and of greater significance, is the fact that it also potentially engaged the appellant's right to privacy guaranteed to her as an unenumerated personal right arising under Article 40.3 of the Constitution of Ireland, as well as her right to...
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