A v B & Garda Commissioner

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Allen,Mr. Justice Maurice Collins
• Judgment Date: 26 April 2024
• Neutral Citation: [2024] IECA 95
• Docket Number: Appeal Numbers: 2021 54

In the Matter of the Judicial Separation and Family Law Reform Act, 1989

And in the Matter of the Family Law Act, 1995 as Amended by the Family Law (Divorce) Act, 1996

Between

A

Applicant

and

B

Respondent

and

The Commissioner of An Garda Síochána

Non-Party

In the Matter of the Guardianship of Onfants Act, 1964, As Amended

And in the Matter of the Children and Family Relationships Act, 2015

And in the Matter of [Stated Names], Infants

Between

B

Applicant

and

A

Respondent

and

The Commissioner of An Garda Síochána

Non-Party

[2024] IECA 95

Collins J.

Whelan J.

Allen J.

Appeal Numbers: 2021 54

2022 63, 2022 84

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 26 ^th day of April, 2024

Introduction

1 . This is a judgment on three related appeals by the Commissioner of An Garda Síochána (“the Commissioner”) against orders made by the High Court for the disclosure by the Commissioner to the parties to family law proceedings in relation to the custody of and access to children, of material which came into the possession of the Gardaí in the course of a criminal investigation.

2 . The Commissioner's central proposition is that the public interest in the detection, investigation and prosecution of suspected criminal offences requires that he may not be required by a court to disclose such material until such time as a decision is made as to whether there should be a prosecution and in that event until the book of evidence has been served. In effect, the proposition is that material so gathered by the Gardaí is, until such time, immune from an order for production.

Chronology

3 . The underlying facts are fairly involved and the procedural history is unusual but it is sufficient for present purposes to give a brief overview.

4 . The parties to the proceedings are the parents of young children. The breakdown of their relationship in 2020 gave rise to acrimonious litigation in relation to the custody of and access to the children.

5 . On 3 ^rd November, 2020 on ex parte application on behalf of the mother, the District Court made an interim barring order against the father. An audio recording was played to the court which was said to evidence abusive behaviour by the father towards her. The recording was again played to the District Court on 10 ^th November, 2020 on the hearing of the contested inter partes application when a barring order was imposed on the father for twelve months. On 18 ^th November, 2020 the father appealed to the Circuit Court where, eventually, his appeal was allowed.

6 . In the meantime, on 2 ^nd December, 2020 the mother issued High Court proceedings under the Guardianship of Infants Act, 1964 and the Children and Family Relationships Act, 2015 in relation to the custody of and access to the children.

7 . On 9 ^th December, 2020 the father issued judicial separation proceedings in the High Court by which he also sought orders in relation to the custody of and access to the children and on 10 ^th December, 2020 issued a notice of motion seeking interim access.

8 . On 11 ^th December, 2020 the mother presented herself at a Garda station saying that she had audio recordings which showed abusive behaviour by the father towards her. The Gardaí copied the recordings from the mother's phone onto a USB stick and returned the phone to her.

9 . On 15 ^th December, 2020 the mother filed a replying affidavit in response to the father's interim access application. Part of the mother's case was that the father had behaved in a way which imperilled the safety and welfare of the children and she deposed to having recordings – plural – which evidenced her allegations. On 5 ^th January, 2021 the father served a notice to produce the recordings but the mother failed to do so. By order of the High Court made on 19 ^th January, 2021 the mother was directed to produce the recordings for inspection by close of business on 22 ^nd January, 2021 but did not do so.

10 . On 20 ^th January, 2021 the mother went back to the Garda station. She informed the Gardaí that the father had requested a copy of the recordings but made no mention of the High Court order. The mobile phone containing the recordings was seized by the Gardaí.

11 . The father's motion came back into the list on 22 ^nd January, 2021. The father then indicated his intention to make an application for non-party discovery of the recordings and the High Court made an order giving liberty to the Commissioner to make submissions to the court regarding the holding of the mobile device(s) belonging to the mother which contained recordings and on 2 ^nd February, 2021 counsel for the Commissioner appeared to say that the Gardaí were conducting a criminal investigation which had a bearing on the family law proceedings.

12 . By notice of motion issued on 4 ^th February, 2021 the father applied to the High Court for an order pursuant to O. 31, r. 29 of the Rules of the Superior Courts directing the Garda Commissioner to make discovery of the recordings and to make provision for the inspection of the device or devices on which they were held.

13 . On 8 ^th February, 2021 a replying affidavit was sworn on behalf of the Commissioner which disclosed that he had in his possession 29 audio and video recordings within the category of discovery sought, in respect of which public interest privilege was claimed on basis of the public interest in the detection, investigation and prosecution of suspected criminal offences. Although filed in reply to the non-party discovery application and entitled replying affidavit, it was in substance an affidavit of discovery – more or less in the form prescribed by the Rules of the Superior Courts – listing and briefly describing the recordings and claiming public interest privilege in respect all of the material sought.

14 . On 9 ^th February, 2021 Barrett J. heard argument on the question of the privilege asserted by the Commissioner. On the same day, a notice of motion was issued on behalf of the mother claiming, in form, a direction that the recordings be provided to the expert who had been appointed by the High Court under s. 32 of the Act of 1964 – to determine and convey the views of the children – and under s. 47 of the Family Law Act, 2015 – to prepare a social report. That motion was treated by the High Court judge as being, in substance, an application by the mother for an order for discovery by the Garda Commissioner of the recordings.

The High Court orders

15 . On 12 ^th February, 2021, for the reasons set out in a detailed written judgment ( [2021] IEHC 96) it was ordered that the identified recordings be provided to the court so that it could make an assessment of what had been identified as the competing public interests in the privilege claimed by the Commissioner and the public interest in the administration of justice. The judge was duly provided with a copy of the recordings which he viewed and listened to.

16 . On 23 ^rd February, 2021, Barrett J. delivered a second written judgment ( [2021] IEHC 119) in which he concluded that the public interest in the administration of justice in a case concerning the safety and welfare of the children outweighed the public interest in maintaining investigative privilege and said that he would make an order for “discovery” of the material by the Garda Commissioner to each of the father and mother.

17 . On 11 ^th May, 2021 for the reasons given in a third written judgment ( [2021] IEHC 352) Barrett J. made an order for the payment by the father – as to 75% – and the mother – as to 25% – of the Commissioner's costs. By then, the substantive proceedings had been settled and on the application of the father and mother, an order was made vacating all orders in relation to disclosure and non-party discovery.

The appeals

18 . By notice of appeal filed on 15 ^th March, 2021 (2021 54) the Commissioner appealed against the judgment and order of 12 ^th February, 2021. For some reason the orders of 23 ^rd February, 2021 and 11 ^th May, 2021 were not perfected until 11 ^th February, 2022. By separate notices of appeal filed on 11 ^th March, 2022 (2022 63 and 2022 84) the Commissioner appealed against the judgment of 23 ^rd February, 2021 and consequent orders made in favour of each the father and the mother; and against so much of the order of 11 ^th May, 2021 as vacated the disclosure and discovery orders previously made.

19 . The appeals were said to raise overlapping grounds but in truth the order of 23 ^rd February, 2021 was consequential on that of 12 ^th February, 2021 and the appeal against the order of 11 ^th May, 2021 appears to have been prompted by an apprehension that the vacating of the previous orders might have rendered the other appeals moot – or more moot than they already were following the disposal of the substantive proceedings.

20 . The Garda Commissioner's core contention was that the High Court was precluded by his claim of privilege from even considering whether the material should be disclosed to the parties.

21 . The appeals were opposed by the father, as legitimus contradictor.

The High Court judgments

22 . In his judgment of 12 ^th February, 2021 the Barrett J. set out in detail the orders sought by each of the father and the mother and the background to the applications, and then quoted extensively from the affidavit of the father's solicitor on which his motion was grounded and from the replying affidavit filed on behalf of the Commissioner. For the purposes of the appeals, it is necessary to say no more than that there were two applications – one each by the father and the mother – for orders directing the Garda Commissioner to disclose material which had been gathered in the course of an ongoing criminal investigation.

23 . As I have said, the replying affidavit filed on behalf of the Commissioner listed and briefly described 29 audio and...