M (G) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 24 March 2015 |
| Neutral Citation | [2015] IEHC 220 |
| Court | High Court |
| Docket Number | [No. 438 J.R./2013] |
| Date | 24 March 2015 |
[2015] IEHC 220
THE HIGH COURT
BETWEEN:
AND
Judicial review – Criminal – Stolen property – S. 18 of Criminal Justice (Theft and Fraud Offences) Act 2001 – S. 28 of the Residential Institutions Redress Act 2002 – Violation of Art. 38 of the Constitution of Ireland.
Facts: The applicant sought an order for prohibition or restrain of his prosecution for an offence of possession of stolen property in contravention of s. 18 of Criminal Justice (Theft and Fraud Offences) Act 2001. The applicant contended that the continuation of the prosecution in the circumstances of the present case would be contrary to the concept of a fair trial as guaranteed by Art. 38 of the Constitution of Ireland 1937.
Mr. Justice Noonan held that an order by way of prohibition to prohibit his prosecution pending in the criminal court would be denied. The Court held that the applicant failed to establish a real risk of an unfair trial. The Court held that the contention of the applicant that he fell in the ambit of definition of a ‘person’ referred to in s. 28 (1) of the Residential Institutions Redress Act would be rejected.
In the within judicial review proceedings, the applicant seeks:
(a) An order of prohibition by way of an application for judicial review or in the alternative an injunction by way of an application for judicial review prohibiting or restraining the continuation of the prosecution entitled:"The People (at the suit of the Director of Public Prosecutions) v. [G. M.]" as set out in indictment bill no. KE29-12 and which currently stands adjourned before Naas Circuit Criminal Court;
(b) A declaration by way of an application for judicial review that continuing the prosecution of the applicant herein in the circumstances would be contrary to the concept of a fair trial as guaranteed by Article 38 of the Constitution of Ireland, 1937 in light of the provisions of s. 28 of the Residential Institutions Redress Act2002 (as amended).
2. Leave to bring the within application was granted by order of Peart J. on the 10th of June, 2013.
3. On the 1st of February, 2012, the applicant was charged with an offence of possession of stolen property, contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, being that on the 20th of December, 2012 at Unit 2 Naas Industrial Estate, Maudlings, Naas, County Kildare, without lawful authority or excuse, he possessed Coca Cola products to the value of €12,532, a battery operated pallet truck valued at €3,000 and three hand trucks valued at €400, total value of property being €15,932.
4. The prosecution alleges the following facts. On the 19th of December, 2010, members of An Garda Síochána came across two lorries that were stopped on the Dublin Road, Naas, County Kildare. The lorries were branded with Coca Cola logos. The Gardai' established that they had been the subject of unauthorised taking and use. A man found in charge of the lorries was arrested and taken into custody.
5. On the 20 of December, 2010, the Gardai attended at and searched a premises at Unit 2A Naas Industrial Estate, Naas, County Kildare, on foot of a search warrant obtained the previous day. A number of pallets of branded soft drinks were discovered on the premises together with pallets of toys and food items. The applicant admitted to being the lessee of the premises. He further admitted to receiving a delivery of pallets of soft drinks from a Coca Cola lorry on the morning of the 19th of December, 2012 and said that he believed the goods to be legitimate but "short dated" i.e. their "best before" date was nearing expiry. The applicant was sent forward for trial to Naas Circuit Criminal Court where his trial is stayed by the said order of Peart J. pending the outcome of these proceedings.
6. The applicant met with his solicitor and counsel and instructed them that he would be pleading not guilty and further that he wished to put forward in evidence certain information arising out of his interaction with the Residential Institutions Redress Board. This information is said to be important to his defence but he is precluded from disclosing it pursuant to s. 28 (1) of the Residential Institutions Redress Act 2002 (as amended).
7. Section 28 of the Act, as amended by s. 34 of the Commission to Inquire into Child Abuse (Amendment) Act 2005, provides as follows:
2 "(1) A person (including the Board and the Review Committee) shall not, subject to this section, disclose information other than the information specified insubsection (4) or (5) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act.
(2) A person referred to insubsection (1) shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act.
a (a) provided to or prepared by the Board and where appropriate the Review Committee, or
b (b) prepared by a person for the Board or the Review Committee in the course of the performance of the functions of such person as a member of the Board, Review Committee, a member of the staff of the Board or the Review Committee or an adviser, shall not constitute Departmental records within the meaning of section 2 (2) of the National Archives Act, 1986.
(4) The Board shall keep a record of the following information-
a (a) the name, address and date of birth of an applicant,
c (c) the period in which the applicant was resident at the institution, and
d (d) the amount awarded to the applicant under this Act,
and such records shall be available to the Minister for the purposes ofsection 13 (13) and to any party against whom proceedings are initiated contrary to section 13 (12).
(5) Notwithstandingsubsection (1) or any other provision of, or an instrument made under, a statute or any other rule of law, a person shall disclose information other than the information specified in subsection (4) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act to-
2 (a) a member of the Garda Síochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence, and
3 (b) to an appropriate person (within the meaning of the Protections for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to the life or to prevent the continuance of abuse of a child
3 (5A) Nothing insubsection (1) operates to prohibit the production of a document prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee, or given in evidence in such application or review, to -
(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or
(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing the functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.
4 (5B) nothing insubsection (1) operates to prohibit the giving of information or evidence provided or given to the board or the review committee to -
(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or
(b) such body or other person as may be prescribed by order made by the minister, when the body or person concerned is performing the functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.
(6) A person shall not publish any information concerning an application or an award made under this Act that refers to any other person (including an applicant), relevant person or institution by name or which could reasonably lead to the identification of any other person (including and applicant), a relevant person or an institution referred to in an applicant under this Act.
(7) The board, shall, prior to the making of an order undersection 3 (3) determine the disposal of the documents concerning applications made to it.
(8) The review, prior to the making of an order undersection 14 (3),determine the disposal of the documents concerning applications made to it.
(9) A person who contravenessubsection (1) or subsection (6) shall be guilty of an offence."
8. Mr. Aylmer SC for the applicant contends that the effect of s. 28 (1) of the 2002 Act is to prevent the applicant from disclosing the information he wants to disclose at his trial. Were he to do so, he would be committing a criminal offence. The information is of the utmost...
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...None of the plaintiffs is a person who performs a function under the Act. This was the conclusion of Noonan J. in the case of GM v. DPP [2015] IEHC 220 when he had to consider the meaning of s. 28(1) of the Act albeit in another context. 10 On the other hand, as pointed out by Noonan J. in ......