The Minister for Justice and Equality v Farrell, The Minister for Justice and Equality v Maguire
|Ms. Justice Ní Raifeartaigh
|04 December 2019
| IECA 364
|04 December 2019
|Court of Appeal (Ireland)
 IECA 364
Ní Raifeartaigh J.
THE COURT OF APPEAL
Discovery – Relevance – Right to silence – Appellants seeking discovery – Whether the appellants had established that the discovery sought was relevant
Facts: The defendants/appellants, Mr Farrell and Mr Maguire, brought an application for discovery of certain materials in the context of proceedings under the European Arrest Warrant (EAW) legislation. The application ultimately reduced itself at the appeal hearing to the net question of whether the Court of Appeal should order discovery of the videotapes of interviews of the applicants conducted while they were in Garda detention and/or the memoranda of those interviews, in circumstances where the applicants claimed that such discovery was both relevant and necessary in order to enable them to properly advance a Point of Objection concerning the right to silence in the substantive EAW proceedings. This application was concerned with discovery prior to and for the purpose of making their EAW Objection at a forthcoming hearing in the High Court, scheduled to take place on 5th December, 2019.
Held by Ní Raifeartaigh J that the appellants had failed to establish that the discovery sought was relevant to the first version of the right to silence argument, and that they had failed to establish that the discovery was necessary in order to advance the second version of the right to silence argument. Ní Raifeartaigh J found that the fundamental point made by the trial judge was that discovery may be ordered in appropriate cases, but only where the applicants “provide a link between the factual background, the pleadings and the right allegedly violated”. Ní Raifeartaigh J held that this was a succinct and accurate way of describing what has to be established and the absence of this link was precisely why the appellants’ applications fell short of what was necessary for their application to meet the appropriate threshold for discovery.
Ní Raifeartaigh J held that the Court would uphold the conclusion of the trial judge.
This is a case in which the defendants/appellants brought an application for discovery of certain materials in the context of proceedings under the European Arrest Warrant (“EAW”) legislation. The application ultimately reduced itself at the appeal hearing to the net question of whether the Court should order discovery of the videotapes of interviews of the applicants conducted while they were in Garda detention and/or the memoranda of these interviews, in circumstances where the applicants claimed that such discovery was both relevant and necessary in order to enable them to properly advance a Point of Objection concerning the right to silence in the substantive EAW proceedings. The precise terms of the Point of Objection are set out below.
It is perhaps important to emphasise that the Court in this application is not concerned with the issue of disclosure of materials to an accused person for the purpose of defending criminal charges. No doubt such disclosure will be made in Northern Ireland in due course and one would expect that they would get the materials now sought at that future stage. The present application is concerned with discovery prior to and for the purpose of making their EAW Objection at a forthcoming hearing in the High Court, scheduled to take place on Thursday 5th December, 2019.
The allegation against the appellants is that they engaged in certain criminal acts (relating to the attempted placing of an explosive device under the vehicle of a PSNI officer) in Derry on 18th June, 2015 and then travelled across the border into Donegal. They were arrested by members of An Garda Síochána in Donegal on the same date and were detained, during which detention they were interviewed, samples were taken and items were seized. Those interviews were, as is normal, video-recorded and written notes were kept by the Gardaí of the interviews.
A European Arrest Warrant was issued by the issuing judicial authority of the United Kingdom of Great Britain and Northern Ireland in respect of each of the appellants. They are sought by authorities in Northern Ireland for the purpose of prosecuting them in respect of offences in connection with the above-described incident.
The appellants sought information arising from their detention in Garda stations which they apprehended would be used in the prosecutions in Northern Ireland. This request was refused by the State authorities and they brought judicial review proceedings to compel the handing over of the materials, and relied, among other things, on EU Directive 13/2012. The High Court refused their application (see judgment of Donnelly J. in The Superintendent of Milford Garda Station & Anor ) on 11th February, 2019. Their appeal of that refusal was in turn refused by this Court (see judgment of Kennedy J. in , ). The decisions of the High Court and Court of Appeal indicated that the appropriate procedure for litigating whether or not the appellants should receive the materials sought was by way of a discovery application pursuant to Order 98, Rule 8 of the Rules of the Superior Courts which applies to discovery in the context of EAW proceedings. Accordingly, the defendants brought the present applications by motions dated 18th November, 2019 (Mr. Farrell) and 21st November, 2019 (Mr. Maguire), grounded upon letters of request dated 11th November, 2019 (Mr. Farrell) and 14th November, 2019 (Mr. Maguire), in which they sought details of any samples taken or items seized upon arrest, copies of statements taken during investigation, and copies of any audio visual recordings during detention.
The provisions of Order 98, Rule 8 - which apply to discovery applications in EAW proceedings - contain the usual tests of ‘relevance’ and ‘necessity’: -
“8.(1) A party to proceedings under the 2003 Act may apply to the Court on notice for an order directing any other party or other person to make discovery of the documents which are or have been in his possession or power, relating to any matter in question therein.
(2) On an application made under sub rule 1, the Court may, on such terms as it thinks fit, order that the party or other person from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been, in his possession, custody or power, relating to the matters in question in such proceedings, or to such matters in question as are specified in the Court's order.
(3) An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.
(4) An application for an order under sub-rule 1 directing any party or other person to make discovery shall not be made unless (a) the applicant for same shall, not later than 7 days before making the application, have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered and (b) the party or person requested has, as of the time the application is made, failed, refused or neglected to make such discovery or has ignored such request.
Provided that in any case where by reason of the urgency of the matter or the consent of the parties, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for such prior application in writing.” (emphasis added)
It is trite law to state that discovery must be relevant to the issues in the proceedings. The issues are defined by the pleadings. In the present case, the pleadings consist of the European Arrest Warrant, on the one hand, and the Points of Objection, on the other. As originally constituted, the Points of Objection (at least as regards Mr. Farrell) on the basis of s.37 of the European Arrest Warrants Act, 2003 appeared to focus on the question of whether prison conditions in Northern Ireland amounted to “inhuman or degrading treatment” and referred to such matters as “the conditions prevailing at the place of detention in Northern Ireland”, “fundamental defects in prison conditions”, and that “surrender will disproportionately interfere with his right to family life”. However, a further Point of Objection was subsequently added to Mr. Farrell's case and stated as follows:
“1. The Respondent puts the Applicant on proof as to whether the European Arrest Warrant relied upon in the case of the Respondent herein is lawful:-
(a) In light of the fact that, if tried for the offences described in the European Arrest Warrant in Northern Ireland, the Respondent will be required to give evidence in his own defence, failing which, an adverse inference may be drawn by the Court based upon the Respondent's failure to give such evidence in circumstances where the Court is satisfied the prosecution case against him is sufficiently strong to clearly call for an answer from the Defendant, contrary to the Respondent's Constitutional right to trial in due course of law pursuant to the provisions of Article...
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