Smith v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Maurice Collins,Ms. Justice Donnelly
• Judgment Date: 30 October 2025
• Neutral Citation: [2025] IESC 42
• Docket Number: S:AP:IE:2024:000094

Between:

Gordon Smith

Appellant

and

The Director of Public Prosecutions

Respondent

[2025] IESC 42

Dunne J.

Woulfe J.

Hogan J.

Collins J.

Donnelly J.

S:AP:IE:2024:000094

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Digital audio recording – Access – Necessity – Appellant seeking access to the Digital audio recording of criminal proceedings – Whether access was necessary

Facts: The appellant, Mr Smith, applied for an order for the Digital Audio Recording (DAR)and/or transcripts of the DAR relating to the testimony given by the witnesses in criminal proceedings. On 29 February 2024, the Circuit Court ordered that the portions of the transcript “relevant to the application made by [the appellant]” be released to him. The appellant lodged an appeal of the order of the Circuit Court to the High Court. On 14 June 2024, the High Court determined that the Court had no jurisdiction to hear the appeal. The Supreme Court granted leave to appeal on the following issues: “(a) the nature and status of the order made by the President of the Circuit Court and whether that order is properly to be regarded as an order made in criminal proceedings on the basis that it related to the DAR of evidence given in criminal proceedings or whether the order was one made in a “civil action or matter” within the meaning of sections 37 and 38 of the Courts of Justice Act 1936; (b) the appropriate approach to applications of the kind at issue here, whether made under Order 67A, Rule 8 of the Circuit Court Rules, Order 123, Rule 9 RSC or Order 12B(5) of the District Court Rules, as regards (i) the appropriate threshold for making an order for the disclosure of the DAR and (ii) the persons that should be put on notice of such applications; and (c) the question of what restrictions (if any) should be imposed on the use of DAR material provided to an applicant on foot of a court order made under the relevant Rules.”

Held by Donnelly J that the High Court had jurisdiction to hear an appeal from the Circuit Court regarding an application for the DAR of criminal proceedings by a non-party. She placed the regulation of access to DAR within the sphere of the right of the courts to control their own processes. She held that the overriding principle is that access to the DAR is only to be granted where it is necessary in the interests of justice. She held that the importance of establishing the relevance of the DAR to a legitimate purpose connected with the administration of justice is a prerequisite to finding that it is necessary. She held that the appellant failed to put before the Circuit Court (or High Court) adequate material such as the pleadings or affidavits to establish the relevance of the sought material to the injunctive proceedings; no access to any part of the DAR ought to have been granted. Donnelly J noted that the appellant, together with his wife and a third party, had entered into an undertaking not to disseminate or cause any other person on their behalf to disseminate or publish the transcript; it appeared counterproductive to rescind the order which may have the effect of jeopardising the strength of the undertaking.

Donnelly J made the following orders: (a) allowing the appeal from the High Court; (b) refusing the appellant access to any further portion of the DAR; (c) affirming the order of the Circuit Court; (d) directing that the respondent make available to "Witness IG" that portion of the transcript provided to the appellant and explain that it was released to the appellant on foot of his application for the DAR for intended use in the injunction proceedings.

Appeal allowed.

Final but unapproved

No redaction required

JUDGMENT of Mr. Justice Maurice Collins delivered on 30 October 2025

1 Article 34.1 of the Constitution commands that, save in such special and limited cases as may be prescribed by law, justice shall be administered in public. The administration of justice in courts whose doors are open to the public (and to the press) is “an essential feature of a truly democratic society”: Irish Times v Ireland [1998] 1 IR 359, per Keane J (as he then was) at 409.

2 It might appear to follow that, as regards proceedings heard in public – as most proceedings are – members of the public should be entitled to have access to any available record of such proceedings. If the public is entitled to attend any court proceedings (other than proceedings held otherwise than in public) and hear viva voce the evidence of witnesses and the submissions of the parties, logic might appear to suggest that the record of such proceedings should be available to the public as of right. Similarly, it might be suggested, the public should, on the same basis, have unconstrained access to any documentary material opened or referred to in proceedings held in open court.

3 Whatever the logic of that position, the law has never adopted such an absolute approach. It has long drawn a distinction between access to court proceedings and access to the records of such proceedings: see, for instance, the observations of Baker J in BPSG Ltd v The Courts Service [2017] IEHC 209, [2017] 2 IR 343, §78. As Donnelly J notes in her judgment, the law does not recognise any “direct line” between the administration of justice in public and access to court records (§57). Thus, transcripts of proceedings in the Circuit Criminal Court prepared by an official stenographer are records held by that court and, as such, outside the access provisions of the Freedom of Information Act 1997: Minister for Justice, Equality and Law Reform v Information Commissioner [2001] IEHC 35, [2001] 3 IR 43, per Finnegan J (as he then was) at 49–50. That would have been so even in the absence of specific Rules regulating access to such documents — court records are under the control of the courts and they are entitled to regulate access to such records: ibid.

4 Even where a person is provided with transcripts of criminal proceedings – where, for instance, a criminal defendant is provided with transcripts for the purposes of a trial or, more commonly, for the purposes of pursuing an appeal – those transcripts remain under the control of the court and cannot be used for any other purpose without prior court permission: Breslin v McKenna [2008] IESC 43, [2009] 1 IR 298 (“ Breslin”), per Geoghegan J at §§40–44. Similar restrictions apply to other court records provided to a defendant, such as a book of evidence: §§35–36. Breslin locates the courts' role in regulating access within their overall responsibility to ensure the due administration of justice, rather than in an “implied undertaking”: §36. In Breslin, this Court consented to the production of the relevant transcripts (as well as the book of evidence) for the purposes of civil proceedings in Northern Ireland, on the basis that such was “necessary for the purpose of doing justice” and no legal prejudice had been demonstrated: §42.

5 This approach to access to court records – including records of court proceedings – reflects the fact that disclosure of such records potentially engages a range of rights and interests, most obviously the rights and interests of litigants (including criminal defendants) but also those of victims of crime and witnesses. Clearly, the public administration of justice may necessarily and inevitably involve the public ventilation (and reporting) of highly private and personal information. That is an unavoidable incident of our justice system. But participants in the justice system, whether as litigants, victims of crime or witnesses, do not abandon or lose their privacy rights ( People (DPP) v AM [2025] IESC 16, §47) and courts are not required to be – and ought not to be – indifferent to the additional impacts on legitimate privacy interests that permitting access to court records may involve. There is a distinction between having to give evidence in open court and having a permanent record of that evidence (or, perhaps, selective portions of such evidence) available online. Access to records of proceedings held otherwise than in public raises further and more difficult issues again. The Data Protection Act 2018, and the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) to which that Act gives further effect, may also have significant implications in this context. As Donnelly J observes, the issue of data protection was not canvassed in argument but it will have to be confronted at some point. As is evident from Breslin, the impact on pending criminal proceedings may also be a factor that has to be considered.

6 There will also be circumstances in which there will be a clear public interest in granting access – as for instance where access is sought for the purposes of media reporting on proceedings held in open court. For obvious reasons, however, that issue does not arise in this appeal. 1

7 The sole issue in this appeal is access to the digital audio recording (DAR) of court proceedings or the transcript of such recording. There is no issue about access to other kinds of court record, such as pleadings, submissions, affidavits, expert reports or other documents that may be furnished to a court (or generated by it) in the course of proceedings. It is therefore unnecessary to consider the issue of access to those records. As regards access to the DAR (or transcripts of it), it is clear from the terms of Order 123 of the Rules of the Superior Courts (RSC) that it does not give an unqualified right of access to such records. The Rules reflect the fundamental principle that such records are under the control of the relevant court and that access to them is not available as of right, a position consistently emphasised in the cases (see for instance, Bank of Ireland v Gormley [2020] IECA 102, per Murray J at §19 & §25; Beatty v The Military Judge [2021] IECA 69, per Murray J at §34; and Garda Síochána Ombudsman...