LK v Minister for Justice and Equality

JudgeMr. Justice Richard Humphreys
Judgment Date21 November 2016
Neutral Citation[2016] IEHC 706
Docket Number[2016 No. 864 J.R.]
CourtHigh Court
Date21 November 2016

[2016] IEHC 706

[2016 No. 864 J.R.]



Crime and Sentencing – Practice and Procedures – Application for judicial review – S. 64(1)(a) of Criminal Justice (Mutual Assistance) Act 2008 – Ultra vires – Constitutional right to privacy – O.21 of the District Court Rules 1997

Facts: The present application for judicial review was filed by the applicant challenging the decision of the respondent/Minister to transmit the evidence for use in criminal proceedings abroad. The applicant contended that the order of the District Court judge was ultra vires of the Criminal Justice (Mutual Assistance) Act 2008. The applicant stated that the orders had infringed her right to privacy guaranteed under the Constitution. The Minister, while interpreting the meaning of s. 64(1)(a) of the 2008 Act, rejected the first ground of challenge of the applicant by stating that in the present case, the applicant whose evidence was sought, had been a witness in hypothetical criminal proceedings and hence, could be compelled to furnish documents by virtue of o.21 of the District Court Rules 1997 and s. 4K of the 1967 Act. The Minister contended that the right of privacy of the applicant was outweighed by public interest.

Mr. Justice Richard Humphreys refused the application of the applicant. The Court, on the basis of the public interest to trial a matter in another member state in accordance with the law of the forum concerned, held that the decision of the Minister requiring the evidence to be transmitted was reasonable and lawful for her to adopt. The Court held that the damage to the security of neighbouring jurisdiction was damage to the security of the State, which in itself was a crucial factor for the grant of transmission of the material evidence.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of November, 2016.

The Criminal Justice (Mutual Assistance) Act 2008 provides for the taking of evidence in the State for use in criminal proceedings abroad. A person subject to those procedures cannot be compelled to give evidence that he or she could not be compelled to give in a criminal trial here. But the statute is ambiguous: does this exception refer to evidence that could not be compellable if the person was a third party, or if the person was formally a witness at the trial?


On 13th May, 2016 a letter of request was received by the Minister from the UK authorities 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 applicant who is a witness at a previous trial of the defendant that was aborted for unrelated reasons and who will be a witness in the retrial. There is a suggestion by the defence in that trial that her evidence may not be entirely reliable (hence their interest in obtaining her medical records), but Mr. Sean Gillane S.C. who appears (with Mr. Tony McGillicuddy B.L.) for the respondent in the present proceedings tells me that as far as the State is concerned it is accepted that the applicant ‘ has conducted herself entirely honourably throughout’. I entirely accept that and I appreciate that the situation is an uncomfortable one for the applicant who has very honourably made her evidence available but who is nonetheless understandably anxious to limit disclosure of her medical records.


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 on 20th October, 2016.


Three witnesses were summoned to appear at Court 8 with medical records pertaining to the applicant and these witnesses were a sister from a particular charitable organisation, the applicant's general practitioner and a patient services officer with the H.S.E.


On 27th October, 2016 Judge O'Neill made the formal order in respect of the first witness for reception of evidence including medical records and on 3rd November, 2016 made orders in respect of the other two witnesses.


The applicant then sought leave to apply for judicial review on 14th November, 2016 in relation to the orders of Judge O'Neill and on that occasion I granted an interim stay on transmission of the material and directed that the matter proceed by way of a telescoped hearing. The retrial of the defendant began on 15th November, 2016 and the applicant was due to give evidence on 21st November, 2016.


In order to ensure that there is not undue interference with the applicant's right to privacy, as emphasised by the European Court of Human Rights in Z. v. Finland (1997) 25 E.H.R.R.371, I directed, pursuant to the inherent jurisdiction of the Court, in order to give effect to s. 63(4) (b) of the Criminal Justice (Mutual Assistance) Act, 2008 that the publication of the identity of the applicant or any medical information referable to her be restrained.


On 18th November, 2016 I gave an ex tempore decision refusing the application and I now set out more formally the reasons for doing so.

Are the orders ultra vires the 2008 Act?

Ms. Tara Burns S.C. (with Mr. Barry Murphy B.L.) in a very able submission for the applicant attacked the orders of Judge O'Neill on two bases, firstly that they are ultra vires the 2008 Act and secondly that they are an impermissible interference with the applicant's constitutional right to privacy.


Section 64(1)(a) of the 2008 Act provides that a person cannot be compelled to give evidence under the mutual assistance provisions of the Act if he or she could not be so compelled in criminal proceedings in the State. It is clear from H.S.E. v White [2009] IEHC 242 (Unreported. High Court, Edwards J., 22nd May, 2009) that there is no power to compel third parties to furnish information in criminal proceedings. It is also clear from J.F. v. O'Reilly [2008] 1 I.R. 753 that the procedure under Part IA of the Criminal Procedure Act, 1967 (formerly preliminary examination) is not a disclosure device to enable such third-party disclosure to be done at the District Court level.


I note in this context a remark of Barrett J. at para. 11 of C. v. Ó Donnabháin [2016] IEHC 74 (Unreported, High Court, 11th February, 2016) where he raised the issue of the possible relevance of s. 4L of the 1967 Act in such a context. While Barrett J. describes s. 4L as ‘ a broad power’, it is not a broad power because (having regard...

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1 cases
  • L.K. (No.1) v Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 25 November 2016
    ...of certiorari and other reliefs by way of judicial review. The High Court (Humphreys J.) refused the application for judicial review ([2016] IEHC 706). The applicant appealed to the Court of Appeal based on a single umbrella argument that the evidence was not compellable on two distinct bas......

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