McGuinness v Commissioner of an Garda Síochána

JudgeMr. Justice David Keane
Judgment Date07 October 2016
Neutral Citation[2016] IEHC 548,[2016] IEHC 549
Docket Number[2014 No. 7727P]
CourtHigh Court
Date07 October 2016

[2016] IEHC 549


Keane J.

[2014 No. 7727P]




Crime & Sentencing – Warrant for search – Sworn information – Practice & Procedures – Discovery of the documents – Informer privilege – Public interest

Facts: The plaintiff sought an interlocutory order for compelling the Garda Commissioner to furnish the plaintiff with a copy of the sworn information that was used to ground warrant for the plaintiff's premises. The plaintiff claimed that the relevant search was carried out in an unlawful manner including flawed sworn information and that the plaintiff was entirely unfamiliar with the contents of the documents, thus the discovery of the document was required. The defendants contended that the contents of the sworn information were privileged against inspection.

Mr. Justice David Keane proposed to examine the texts of the sworn information in dispute to recognise and weigh the competing interest in compelling or withholding its production. The Court held that where informer privilege had been contended on ground that the life of informer would be in danger if the identity was disclosed, then it was for the Court to examine the information material concerned. The Court in line with the principles as set out in Ambiorix v Minister for Environment (No. 1) [1992] 1 I.R. 277 observed that it was a matter of judicial power to weigh and decide whether public interest involved in the production of evidence or withholding of the documents.

JUDGMENT of Mr. Justice David Keane delivered on the 7th of October 2016

This is an application for an order compelling the Garda Commissioner to furnish the plaintiff with a copy of the sworn information grounding the successful application that was made to the District Court on the 21st August 2014 for a warrant to search the plaintiff's premises at Hillcrest, Cloghran, County Dublin.


The application is interlocutory in nature. It is brought in the context of the plaintiff's action for damages for negligence; misfeasance in public office; trespass; conversion and detinue; and breach of his constitutional rights, together with certain injunctive reliefs, arising from the search of his premises, and the seizure from them of certain property, by members of An Garda Síochána on the 23rd August 2014.


The plaintiff owns business premises at an address which he describes as Pinnock Hill, Swords, County Dublin and which has been described by his solicitor in correspondence on his behalf as Pinnock Hill, Cloghran, County Dublin. The premises comprise a yard that is used for the storage of haulage vehicles.


Early on the morning of the 23rd August 2014, members of An Garda Síochána conducted a search of those premises under a warrant issued by a judge of the District Court on the 21st August 2014, pursuant to the terms of s. 10 of the Criminal Justice ( Miscellaneous Provisions) Act, as substituted by s. 6 of the Criminal Justice Act 2006.


The said warrant recites that as a result of hearing the evidence on oath of Sergeant James P. Fraher of Cavan Garda Station, the District Judge was satisfied that there were reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence was to be found at a place, namely, Hillcrest, Cloghran, County Dublin. The warrant describes the said evidence as “to wit documentary, telephone, computer and any other evidence relating to motor vehicle 98 D 55178, including the cut off section of the roof, the registration plates and steel cuttings consistent with cut offs from the metal used on motor vehicle 98 D 55178.” The warrant goes on to recite in material part that “this vehicle was recovered at Quinn Packaging, Rathkeelan, Ballyconnell, Co. Cavan.”


The plaintiff has now been provided with a copy of that warrant.

Procedural History

The plenary summons in the plaintiff's action issued on the 2nd September 2014. On the following day, the plaintiff issued a motion seeking interlocutory injunctive reliefs, including, most notably in the present context, an order compelling the Garda Commissioner to furnish him with a copy of the warrant authorising the search of his premises. By the time that application came on for hearing before me on the 15th October 2014, the parties had reached agreement on the provision of a properly legible copy of the said warrant, and the plaintiff's motion was struck out.


On the 22nd January 2015, the plaintiff delivered his statement of claim. The defendants raised a notice for particulars on the 3rd February. Before furnishing replies to particulars, the plaintiff issued a further notice of motion on the 10th March, seeking an order compelling the Garda Commissioner to furnish him with a copy of the sworn information that was used to ground the search warrant application. The defendants subsequently issued a motion seeking an order compelling replies to particulars.


When both of those applications came before the Court on the 24th June last year, by agreement between the parties, the defendants' motion was struck out with a direction that replies to particulars were to be furnished within two weeks. The defendants were to have their costs of that motion with a stay on that order pending the determination of the proceedings. The plaintiff's application proceeded and, having heard the submissions of the parties, I reserved judgment upon it.

Issues and Evidence

The legal basis for the application has not been made clear. It is trite to observe that, in civil proceedings generally, where one side seeks disclosure of a document in the possession of the other, the appropriate course is to bring an application for discovery in accordance with the applicable rules of court, and thereafter to seek inspection of that document in accordance with those rules. Thus, one would not normally expect the issue of discovery to arise until the pleadings have closed; one would expect any application to court for an order for discovery to be preceded by a preliminary letter in the prescribed form seeking voluntary discovery, and so forth. The pleadings in this action are not closed, the relevant procedural rules have not been complied with, and the present application is not couched as one for discovery or inspection of the relevant document.


Counsel for the plaintiff submitted that the application was brought simply as an alternative to bringing an application in the District Court for an order, pursuant to the provisions of Order 35, rule 3 of the District Court Rules, directing the clerk of that court to furnish a copy of the sworn information to the applicant. This was done, according to Counsel, on the basis that, since either the grant or refusal of any such application was likely to become the subject of a subsequent challenge by the unsuccessful party in this Court, the potential saving in time and cost of making the application directly to this Court in the first instance should foreclose any inquiry there might otherwise be into the jurisdictional basis for doing so.


That is not a persuasive argument in principle, since this Court cannot, and should not, base the exercise of its own original jurisdiction on speculation about the potential significance of a hypothetical first instance decision in an inferior court or about the contingent intentions of each of the parties affected by that decision. Nor is it a persuasive argument in fact in this case since, as Counsel for the defendants pointed out, the recent decision of this Court ( per Kearns P.) in Lenaghan v District Judge Flann Brennan [2015] IEHC 143 establishes that the jurisdiction conferred upon the District Court under Order 35 of the Rules of the District Court does not enable a person who is not a party to any proceedings before that court to obtain a copy of any information in the custody of it, nor does it permit a judge of that court to direct the clerk to furnish a copy of any such information to a person for the purpose of any legal proceedings other than proceedings before the District Court.


That would be the end of the matter as far as this application is concerned were it not for two further considerations. The first is the invocation by Counsel for the plaintiff of the observation of Fennelly J., giving judgment for a unanimous Supreme Court in Creaven & Ors v Criminal Assets Bureau & Ors [2004] 4 I.R. 435 (at 467), that he deplored the refusal of the relevant respondent in that case to provide the applicants with “copies of the essential documents which had been used to ground the applications for the warrants.” It may very well be that the observation concerned was directed to the particular circumstances of that case. However, it might equally be suggested that this was a tacit acknowledgment of some freestanding right on the part of a person whose property rights have been interfered with through the execution of a search warrant to be furnished not merely with a copy of the relevant warrant but also with a copy of the essential documents used to obtain it, in order to enable that person to be properly satisfied of the lawfulness of that interference.


The second additional consideration is...

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