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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G.M. -v- Director of Public Prosecutions [2015] IEHC 220 (24 March 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H220.html
Cite as: [2015] IEHC 220
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Judgment
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Neutral Citation: [2015] IEHC 220 THE HIGH COURT JUDICIAL REVIEW [2013 No. 438 J.R.] BETWEEN: G. M. APPLICANT AND
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT of Mr. Justice Noonan delivered the 24th day of March, 2015 Introduction
(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 Act 2002 (as amended). Facts 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 Gardaí 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 20th of December, 2010, the Gardaí 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). Residential Institutions Redress Act 2002
(2) A person referred to in subsection (1) shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act. (3) Documents that are— (a) provided to or prepared by the Board and where appropriate the Review Committee, or (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) the name, address and date of birth of an applicant, (b) the name of the institution concerned, (c) the period in which the applicant was resident at the institution, and (d) the amount awarded to the applicant under this Act, and such records shall be available to the Minister for the purposes of section 13 (13) and to any party against whom proceedings are initiated contrary to section 13 (12). (5) Notwithstanding subsection (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— (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 (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 (5A) Nothing in subsection (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. (5B) nothing in subsection (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 under section 3 (3) determine the disposal of the documents concerning applications made to it. (8) The review, prior to the making of an order under section 14 (3), determine the disposal of the documents concerning applications made to it. (9) A person who contravenes subsection (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 importance to his defence and consequently, the effect of the statutory prohibition on its disclosure means that he cannot get a fair trial. It would not be possible to devise any legal artifice or device that would satisfactorily surmount this difficulty before a jury and it is not something capable of being remedied by direction of the trial judge. The applicant has a right under Article 38.1 of the Constitution and Article 6 of the European Convention on Human Rights to defend himself at his trial and as it is clear that the 2002 Act prevents him from doing so, the trial should be prohibited. 9. Ms. Brennan BL for the respondent submits that if the information in question relates to an award obtained by the applicant, he is not in fact prohibited by the 2002 Act from disclosing it to the jury. Even if that were not the case, an applicant seeking an order of prohibition in relation to a criminal trial has a very heavy onus cast upon him to establish that there is a real risk of an unfair trial as opposed to one that is theoretical. It is very difficult to see how the information in question would assist in establishing that he is innocent of the offence with which he is charged. It would in any event be a matter easily capable of being dealt with by way of an appropriate direction from the trial judge who has ultimate responsibility for the fairness of the trial. Relevant case law 11. In delivering the judgment of the Supreme Court, Finnegan J. set out the provisions of s. 28 and said (at p. 270):
1. The Board; 2. The Review Committee; 3. Persons who obtain information in the course of the performance and functions of that person under the Act. The section prohibits each of those to whom it is directed from disclosing information other than the information specified in subsection (4) or subsection (5) of the section. Neither subsection (4) or subsection (5) are relevant to the issues in the case stated. [13] Subsections (5A) and (5B), introduced into the Act of 2002 by s. 34 (h) of the Commission to Inquire into Child Abuse (Amendment) Act 2005, provide that s. 28(1) shall not operate 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 or the giving of information or evidence provided or given to the Board or Review Committee to 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. The Circuit Family Court is, I am satisfied, when hearing an application for a maintenance order a body or person performing functions under an enactment consisting of the conducting of a hearing and so subsections (5A) and (5B) apply and in consequence s. 28 (1) of the Act has no application; such information and documents, but not the fact or amount of the award, may be disclosed by the Board, the Review Committee and the persons to whom s. 28 (1) is directed to the Circuit Family Court. [14] Section 28 (6) in its terms applies to any person. It prohibits the disclosure of any information concerning an application or an award made under the 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 an applicant, a relevant person or an institution referred to in an application made under the Act. Section 1 of the Act defines relevant person as a person referred to in an application as having carried out the acts complained of or the institution in which the acts complained of were carried out and persons involved in the management of that institution. Institution is defined in s. 1 of the Act as an institution specified in the schedule to the Act. [15] Thus subsection (6) prohibits a person publishing information concerning an award that refers to any other person by name or which could lead to the identification of any other person including an applicant, a relevant person or an institution. For the respondent to furnish information as to the amount of the award to her would not be to publish information concerning “any other person”, relevant person or institution by name nor would this lead to the identification of any other person, relevant person or institution. In short the effect of subsection (6) is that an applicant may make known the amount of an award received so long as no other person, relevant person or institution is named and provided that the disclosure could not reasonably lead to the identification of any other person, a relevant person or an institution. Having regard to the provisions of s. 5A (3) of the Family Law (Maintenance of Spouses and Children) Act 1976, as inserted by s. 18 of the Status of Children Act 1987, there is an obligation to disclose the amount of the award; the source of the award may be disclosed by the recipient or if the source becomes relevant the recipient may be obliged to disclose it. The proceedings in respect of a maintenance order will be in camera and there will be no further disclosure of the fact of the application or the amount of the award. The clear policy of the Act of 2002 in preserving confidential information relating to applications will not be impaired by disclosure for the purposes of the proceedings in the Circuit Family Court.”
With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D. v. The Director of Public Prosecutions [1994] 2 I.R. 465, that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” 14. The application failed before the High Court and was appealed to the Supreme Court. In the course of delivering the judgment of the court, Hardiman J. said (at p. 252):
Discussion 17. As stated by Finnegan J. above, s. 28 (1) is directed to the Board, the Review Committee and persons who obtain information in the course of the performance of functions of that person under the Act. The applicant however says, as he must, that he is a person performing functions under the Act in that he must comply with its provisions in order to make an application for an award. Section 1 (1) of the Act provides for “functions” which include powers and duties. It further provides that “applicant” shall be construed in accordance with s. 7 (1), which describes an “applicant” as a person who makes an application for an award to the Board. 18. Section 5 of the Act imposes duties upon the Board and gives it certain powers. These are described in the marginal note as the “functions of Board”. Section 14 of the Act establishes the Review Committee and refers throughout to the performance of its functions by the Committee. 19. The long title of the Act is as follows:
20. Viewed as such, I cannot see how an applicant for a redress award could be regarded as a person performing a function under the Act. Accordingly, in my view s. 28 (1) has no application to the applicant in these proceedings. 21. Section 28 (6) does however apply to the applicant. Thus, as pointed out by the Supreme Court in F McK, for the applicant to publish information regarding the fact or amount of an award he himself received would not contravene the subsection as it would not relate to “any other person” but to the applicant himself. The subsection permits such publication by an applicant provided that no relevant person or institution, as defined, is thereby identified. 22. I am satisfied therefore that there is no legal impediment to the applicant giving evidence of the kind referred to in his own defence. Even if that were not the case, I am far from satisfied that the applicant would thereby be prevented from having a fair trial. The applicant must establish a real risk of an unfair trial. As pointed out by Hardiman J. in Scully, the applicant has to engage with the facts of his case in a meaningful way so as to demonstrate the likelihood of such a risk arising. The applicant is here charged with the offence of possession of stolen property. The connection between such offence and the fact that the applicant may or may not have received a redress award of whatever amount is not an immediately obvious one. It is certainly not beyond the bounds of possibility that such evidence could be regarded as both relevant and admissible but it is nonetheless difficult to conceive how it could ever be of more than fairly tangential relevance to the issues in the case. 23. If it did become in some way material to the issues, I can see no good reason why the trial judge could not effectively deal with such issue by appropriate rulings and directions. Conclusion |