Judgment delivered on the 23rd day of February, 2012 by Murray J.
This matter concerns an appeal by the Minister from a High Court order for the discovery by him of certain documents and materials which allegedly relate to issues arising in the substantive proceedings brought by the Minister against the respondent.
In the substantive proceedings the Minister had applied to the High Court for the surrender of the respondent to Lithuania on foot of a European Arrest Warrant issued by a judicial authority there. The European Arrest Warrant concerns three offences and are referred to in the judgment of the High Court as ones which are "marked in the warrant as being offences of terrorism and illicit trafficking in weapons, munitions and explosives." The High Court judgment goes on to state "the offences as described in the warrant allege, inter alia, that the respondent and others agreed that they would acquire a considerable amount of firearms, ammunition and explosive devices and explosive substances and to transport them from Lithuania to Ireland in order to provide support to the Real IRA."
At the hearing of the appeal and having heard submissions from both sides the Court announced its decision on the appeal and stated that it would give its reasons at a later date.
Decision of the Court
The decision at the conclusion of the hearing of the appeal was that the appeal should be allowed and the High Court order should be set aside. The Court also made an order striking out paragraphs 17 and 18 of the respondent's additional objections filed before the High Court on the grounds that they constituted an abuse of process. It stated that the substantive proceedings may proceed in the High Court. It also declined make a recommendation pursuant to the Attorney General's Scheme in favour of the respondent. It stated that reasons would be given later for its decision.
In this judgment I set out the reasons for concurring with the decision that the appeal be dismissed and the aforesaid orders made.
The High Court Order
The terms of the High Court order for discovery was as follows:
"IT IS ORDERED that the Minister for Justice and Law Reform do within four weeks of the date of perfection of the Order herein make discovery on oath of the following documents.
a. All the requests to the Authorities in this State and responses to such requests from Authorities in the Republic of Lithuania or the United Kingdom of Great Britain and Northern Ireland for the provision of assistance whether made pursuant to International Mutual Assistance Conventions or pursuant to the Criminal Justice Act, 1994 or other statutory authority whatsoever in respect of the Respondent herein but limited to those related to or connected with the offences referred to in the European Arrest Warrant herein dated the 12th day of February 2008 or any of them between the 1st day of January 2007 and the 8th day of February 2010.
b. Copies of all records maintained and authorities granted in respect of interception and surveillance of the Respondent under the Criminal Justice (Terrorist Offences) Act, 2005 or other Authority, other than any such records maintained or authorities granted pursuant to the Postal and Telecommunications Service Act, 1983 the Interception of Postal Packages and Telecommunications Messages (Regulations) Act, 1993, and but [sic] limited to the period 1st day of January 2007 to the 8th day of February 2008."
The Issues in the Substantive Proceedings
In his application for the surrender of the respondent the appellant, as already indicated, relied on a European Arrest Warrant issued by a judicial authority in Lithuania which was executed in this country having been duly endorsed by the High Court. In principle the High Court, once satisfied that the European Arrest Warrant complies with the European Arrest Warrant Act of 2003, as amended, and the provisions of the Framework Decision, that is to say Council Framework Decision of the 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States, it is obliged to order the surrender of the respondent.
The respondent filed objections to the application of the appellant pursuant to the Rules of the Superior Courts. There were eight points of objection. Points 1 to 6 in broad terms claimed that the European Arrest Warrant did not comply in form or substance with the requirements of the Act of 2003 or the Framework Decision. Point 7 claimed that the surrender of the respondent should be refused under s.37 of the Act of 2003 because conditions in places of detention in Lithuania allegedly were such as to be in breach of Article 3 of the European Convention on Human Rights and in particular its prohibition on inhuman or degrading treatment or punishment. Point 8 of the objection, also relying on s.37 of the Act of 2003, alleged that there were fundamental defects in the criminal justice system in Lithuania and the respondent's right to fair procedures and his right not to be deprived of his liberty save in accordance with law would be infringed in the event of such a surrender.
Subsequently, further additional points of objection were filed on behalf of the respondent and these number 19 in total. The first three of these concern alleged inadequacies in the Attorney General's Scheme as a form of legal aid in proceedings of this nature. Many of the other points raised in the additional points of objection relate to alleged deficiencies in various aspects of the legal system of the requesting State, Lithuania, such as the availability of legal aid, conditions concerning pre-trial and post-trial detention, the adequacy of interpretation and translation facilities and deficiencies in the pre-trial and trial process.
The documents which are subject of the order for discovery referred to above do not relate to any of these issues but relate to alleged requests to the authorities in the State from authorities in Lithuania or the United Kingdom and any responses thereto as referred to in paragraph (a) of the Order cited above as well as copies of records related to any interception and surveillance of the respondent under the Criminal Justice (Terrorist Offences) Act, 2005 as referred to in paragraph (b) of that Order.
The respondent claims to be entitled to discover of the documents in question in order to enable him to properly address issues raised by him in his challenge to the application for his surrender. The only issues purportedly raised by him in points of objection to which these documents might be considered directly relevant to the application for discovery are those set out in points 17 and 18 of his points of additional objection. Point 11 has, at best, some contextual relevance.
Those objections are stated in the following terms:
"11. The surrender of the respondent should be refused under section 37 of the European Arrest Warrant Act, 2003 in circumstances where no undertakings or guarantees have been given as to the respondent's entitlement to challenge the admissibility of any evidence allegedly obtained from the respondent's home in the Republic of Ireland [sic]; and the respondent will not or may not be permitted to make such a challenge. Efforts on the part of the respondent to establish the nature and extent of such evidence sought through a request made pursuant to the Freedom of Information Act."
"17. It appears that (a) it is the intention of the requesting state to prosecute the respondent on foot of the evidence of an agent or agent provocateur of the United Kingdom's military intelligence service; and (b) the evidence which will be adduced as against the respondent will in large part derive from an unauthorised operation conducted by the said intelligence service within the State. As such a substantial part of the evidence which will be led as against the respondent derives from within the State and was gathered within the State. In the premises the surrender of the respondent for the purpose of trial outside the State in respect of offences alleged to have occurred within the State will have the effect of depriving the respondent of the ability to contest the admission of such evidence on the grounds that it contravenes the provisions of the Constitution and/or the law of the State. As such the surrender of the respondent ought to be refused on the grounds that the respondent will be unable to litigate or canvass such issues in the course of any subsequent trial.
18. Further or in the alternative to the matters pleaded at paragraph 17 above the surrender of the respondent amounts to a device whereby the provisions of the Constitution and/or the law of the State insofar as they may relate to the admission of evidence the manner in which evidence is gathered, the conduct of any investigation and/or the entitlement of foreign police or military intelligence agents to conduct operations or investigations will be avoided or defeated. As such the surrender of the respondent ought to be refused on the grounds that such surrender is precluded by the provisions of section 37 of the European Arrest Warrant Act, 2003, and in that it would amount to a breach of his Constitutional rights and a usurpation of the role of the courts in protecting constitutional rights of citizens generally. In particular the respondent's entitlement to a trial in due course of law would be defeated."
Reasons
Order 8 of the Rules of the Superior Courts (European Arrest Warrant Act, 2003 and Extradition Acts, 1965 – 2001) (S.I. No. 23 of 2005) make provision for discovery in relation to applications for surrender pursuant to the Act of 2003.
Order 8 provides as follows:
"(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."
All of the documents the subject matter of the High Court order for discovery relate to matters which occurred within the State namely alleged requests to the authorities in this State by other parties pursuant to Irish law or international mutual assistance conventions and copies of any records in the possession or procurement of the Minister relating to any interception and surveillance of the respondent.
In the proceedings before the High Court the respondent, by way of affidavit, has tendered material and evidence seeking to establish certain deficiencies in the Lithuanian criminal justice system which allegedly would give rise to a breach of his rights including his right to a fair trial as well as material and evidence seeking to establish that his detention in Lithuania, if returned there, both pre-trial and post-trial (in the event of a conviction), would be such as to allegedly constitute a breach of his fundamental rights including a breach of the European Convention on Human Rights.
The documents the subject matter of the High Court order for discovery are not relevant to those issues concerning the criminal justice system in Lithuania nor the conditions of detention there. At all material times those issues fell to be decided in the substantive proceedings before the High Court. Those issues were not, and could not have been, the basis on which the learned High Court judge made the order for discovery under appeal.
The same considerations apply to other issues raised in the objections filed on behalf of the respondent such as those challenging the validity of the warrant itself and whether the warrant seeks the respondent's surrender for the purposes of conducting a prosecution as the Framework Decision requires.
As regards the documents the subject of the High Court order for discovery the issue is whether they relate to any matter properly in question in the proceedings and if so whether their discovery is necessary either for disposing fairly of the issues in the proceedings.
As can be seen from points 17 and 18 of the points of objection, cited above, they contain assertions that the requesting state intends to prosecute the respondent on
It is also asserted that the application for the respondent's surrender is no more than a device to circumvent the provisions of the Constitution and/or the law of the State relating, inter alia, to the manner in which evidence is gathered, the conduct of any investigation and/or the entitlement of foreign police or military intelligence agents to conduct operations or investigations within the State.
These are serious allegations of allegedly unlawful acts done with the knowledge and/or connivance of individuals in the employ of the State. They are however, mere assertions.
Apart from a reference in one affidavit to the execution of a search warrant in the respondent's home, which I will come to later, there is not a scintilla of evidence or material put forward to support the contention that any operation of the kind referred to in paragraphs 17 or 18, or of any kind was conducted within the State. It follows that there is not a scintilla of evidence that there was an agent provocateur involved or that there was an agent of any sort of "the United Kingdom's Military Intelligence Service".
No material or evidence has been tendered to support these broad assertions in the points of objection. It also follows that there is not a scintilla of evidence or material to support the contention that the Minister's application is some kind of devious device to circumvent the provisions of the Constitution as regards the conduct of an investigation or the conduct of foreign police or military intelligence within the State.
The respondent filed an affidavit in these proceedings in the course of which, at paragraph 5, he averred "I apprehend that part of the case made against me will consist of material provided by the respondent Minister to the requesting State of Lithuania pursuant to international mutual legal assistance conventions, or pursuant to the Criminal Justice Act, 1994 or other statutory authority." (emphasis added)
In the next paragraph of his affidavit he went on to state "I am anxious to establish what material if any has been supplied by the respondent Minister to the requesting state and in addition to establish whether there is other material held by the respondent Minister which has not been released, but which would be relevant to the proposed surrender and/or prosecution and which would ordinarily fall to be supplied to an accused person pursuant to the ordinarily applicable disclosure rules." (emphasis added)
As regards these particular matters relating to the alleged provision of information or material to the Lithuanian authorities by the Minister the sworn statements of the respondent throughout his affidavit are at the same level as those referred to above namely, simply an assertion that material may have been supplied by the Minister to the Lithuanian authorities and that issues could arise in relation to the legality of procedures by which information was obtained by the Minister and released to other parties. The affidavit in question, which was sworn for the purposes of an application in separate proceedings under the Freedom of Information Act, 1997 but relied upon in this application, does not contain even one averment of fact purporting to support the contention that investigations were carried out for the purposes of providing information to Lithuania or third parties or, if anything was done in that regard, that was done in any way unlawfully. No reference whatsoever is made in the affidavits filed in the High Court, in support of the applicant's objections, to an agent provocateur, an operation by foreign military intelligence or the like.
Curiously the motion for discovery seeks documents relating to requests and responses made "pursuant to international mutual legal assistance conventions, or pursuant to Criminal Justice Act, 1994 or other statutory authority whatsoever" and "copies of all records maintained, and authorities granted in respect of interception and surveillance whether pursuant to the Post and Telecommunications Service Act, 1983, the Interception of Postal Packages and Telecommunications Messages (Regulations) Act, 1993 and the Criminal Justice (Terrorist Offences) Act, 2005 or other authority." In other words, what is sought are documents and records arising from the alleged exercise of lawful powers under the various statutes or other such authority. Apart from the fact that there is not a scintilla of evidence or material provided to show that such powers may have been used there is none to suggest that any such lawful powers were exercised in some way or somehow unlawfully.
An affidavit sworn by a solicitor on behalf of the respondent in support of the application for discovery contains no such evidence and is redolent with generalised assertions such as "the respondent is concerned that information was procured in breach of his constitutional rights and that information has been sent to the Lithuanian authorities…" It is also stated in that affidavit that the respondent is anxious to establish "what material if any has been supplied by the Minister to the requesting State". This affidavit did not advance the matter any further containing no averment of fact which would tend to support the allegations made in paragraphs 17 and 18 of the objections filed on behalf of the respondent and to which the application for discover relates. It is essentially speculative in nature as to whether any information was obtained or supplied.
Another affidavit sworn by the respondent's solicitor and filed on his behalf contained the following averment:
"I say and believe that Mr. McGuigan's home was the subject of a search before he was arrested under the EAW and that materials were seized during that search. I say that I wish to ascertain what was seized and whether the said search was lawful or in breach of Mr. McGuigan's constitutional rights."
It has to be said that this would appear to be a disingenuous manner of addressing an alleged search of the respondent's home in the context of the issues which the respondent himself seeks to raise. This Court has repeatedly stated that when parties rely on affidavit evidence the person who has actual knowledge of the facts relied upon should be the person who deposes on affidavit as regards those facts. Neither the respondent nor anyone else has sworn an affidavit attesting to any fact concerning any such search of the respondent's home. In principle affidavits should be confined to such facts as the deponent is able of his or her own knowledge to prove. Order 40 of the Superior Court Rules does permit exceptions in certain circumstances to the foregoing in the case of interlocutory motions. Even then the deponent must set out the grounds or basis of his or her belief as to a fact deposed. That means, inter alia, that the deponent must state the source and grounds for averring to the facts stated. It is not proper for a solicitor to make a statement in a sworn affidavit that certain matters have occurred simply by saying "I say and believe" without more. There is a risk that a court might be misled into acting on assertions of fact for which there is no basis. Moreover, a failure to state the grounds of a deponent's belief, in circumstances where such an averment is admissible within the rules, may deprive the averment of any evidential value since the court has no knowledge of the source of the information or whether any person has actual knowledge of it and would be in a position to give evidence of its truth.
In this instance the statement regarding the search of the respondent's house is vague and generalised. No date is given for the search, if it happened. No information is given as to who witnessed the search or has actual knowledge of the search taking place. It does not state the location or address of the premises which are said to be the respondent's home. It does not state by whom the premises were searched even if it is to be inferred that it was allegedly a member or members of the Gardaí by reason only of the fact that discovery is sought against the Minister. It refers to "materials" being seized during the search without giving the slightest indication of what those materials might be. It does not say who was at or in the premises at the time of the search or whether a search warrant was produced. The deponent himself says nothing about these matters, not even what kind of 'materials' might have been seized allegedly from his own home as a result of the search. If there is any problem about addressing these questions of fact concerning the search on the respondent's premises no indication whatsoever is given why it was not possible to address any one or more of these matters which one would normally expect to be addressed. All of the foregoing in the context, as pointed out, that the deposing solicitor said nothing about how she came to believe that there was any such search or that any such materials were seized.
Neither is there any attempt to address any factual element which might even suggest that any such search, if it occurred, could have constituted a breach of the respondent's rights by a State authority. All in all there seems to have been a studied avoidance of addressing any salient facts relating to this serious allegation of somehow unlawful conduct.
That paragraph in the affidavit of the respondent's solicitor cannot be considered as providing any material support for the far-reaching assertions made in paragraphs 17 and 18 of the respondent's objections.
In proceedings of this nature matters cannot be considered to be issues in the proceedings between the parties unless there is some demonstrable basis by way of material or evidence which would allow a court to conclude that there is a genuine issue to be tried. Mere assertions or allegations without more, particularly where they involve serious allegations of unlawfulness and illegal conduct, are not a sufficient basis for treating such matters as being an issue in the proceedings. (See for example Minister for Justice, Equality and Law Reform v. Altaravicius [2006] I.R. at 160, where it was held "A mere assertion of non-compliance or the mere raising of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of compliance." That was a case in which the respondent in that case sought to raise, by way of assertion, an issue as to whether the domestic warrant underlying the European Arrest Warrant had been duly issued or issued in accordance with the law of the requesting State.)
In the absence of any material or evidence in the High Court tending to support (and which counsel admitted he was not in a position to provide) the broad ranging assertions made by the respondent in paragraphs 17 and 18 of his objections those matters cannot, in my view, be properly to be considered to be in issue in these particular proceedings. On the facts of this case they can only be considered as speculative assertion.
In any event, what is clear from the affidavits filed on behalf of the respondent is that at best, he is seeking to establish whether any such records, "if any", exist in relation, for example, to an alleged surveillance. As regards the alleged search of his house, it is stated that the deponent wished to ascertain, inter alia, "whether the said search was lawful". This is classically a fishing expedition which the principles governing discovery do not permit.
In Framus Limited v. Cement Roadstone Holdings plc [2004] 2 IR 20 at p.40 it was stated:
"The plaintiffs complain that they were effectively put out of business by the abuse of a dominant position on the relevant markets by the defendants and in particular by their concerted action in relation to such matters as the terms and conditions of sale of the products in question to buyers of those products. The fact is that they have been in a position to plead specific contracts and projects which were the subject of these alleged anti-competitive practices and which affected their businesses. However, what the plaintiffs in effect seek in this context is access to all documents concerning all transactions (within the relevant periods for the relevant markets) because they believe that among them that they will find evidence of the anti-competitive practices of which they suspect the defendants. Apart from its speculative element, this particular application is more akin to an investigative process rather than a discovery process and perhaps more appropriate to, as the High Court Judge pointed out, the exercise of a public investigatory power by a competent authority."
In Carlow Kilkenny Radio Limited v. Broadcasting Commission [2003] 3 I.R. Geoghegan J., when addressing an issue concerning discovery in judicial review proceedings, cited with approval the following passage from a United Kingdom case R. v. Secretary for State for Health, ex parte Hackney Borough (unreported Court of Appeal 24th July 1994):
"In the ordinary inter partes civil action the Plaintiff usually makes a series of factual averments which may well be challenged, but which are not usually sufficiently plausible to raise issues calling for discovery. It is not open to a Plaintiff in a civil action, or an application for Judicial Review, to make a series of bare unsubstantiated assertions and then call for discovery of documents by the other side in the hope that there may exist documents which will give colour to the assertions that the Applicant, or the Plaintiff, is otherwise unable to begin to substantiate. This is the proscribed activity usually described as “fishing”: the lowering of a line into the other sides’ waters in the hope that the net may enclose a multitude of fishes, the existence or significance of which the Applicant has no rational reason to suspect".
Thus, in addition to my conclusion that the matters referred to have not properly been put in issue in these proceedings the application of the respondent for discovery of the matters referred to in his application and in the order of the High Court could not be considered anything more than a fishing expedition and for that reason ought to have been refused also.
The judgment of the High Court included the following statements:
"It seems to me that before such a submission can even get off the ground on the hearing of this application for his surrender, the respondent will have to overcome the obvious problem that his fears as to the unlawful harvesting and provision of material to the authorities in Lithuania is pure unsubstantiated speculation. Without establishing that such a thing may have occurred, it seems to me that the question of abuse of process or the abuse of Convention or other rights does not arise. The submissions being made in that regard will have to be based on cogent evidence.
That task will be at least assisted if the respondent can show that in fact material was provided, and to an even greater extent if he can prove what material was provided and how it was obtained.
It seems to me that taking all the facts or likely facts known on this application, including by reference to the material supporting the previous application by way of appeal from the exemption certificate under Freedom of Information, it is sufficiently established that some material in the nature being sought by the respondent exists. This is not a classic fishing exercise.
Such material would, if it exists, be relevant to the issue of abuse of process and breach of rights, and may well speak to the question as to how it was obtained. If such material exists I would conclude that, given the extent of the onus upon the respondent to base his legal submissions on cogent evidence, that material is necessary for a fair determination of the issues raised in these proceedings, and should be made the subject of an order for discovery."
The learned High Court judge acknowledged that the respondents faced the problem of establishing that his "fears" were other than "pure unsubstantiated speculation." He went on to conclude that the respondent's task in that regard would be assisted if he could manage to show that material was provided by the Irish authorities to other authorities and how it had been obtained. That is, with respect, to put the cart before the horse. A party is not entitled to discovery on the basis of purely speculative assertions. As already pointed out there is no evidence or material whatsoever to show that any of the matters referred to in paragraphs 17 and 18 of the objections occurred at any time or that anything unlawful may have been done. If parties in proceedings such as this could obtain discovery on any matter which was the subject of speculative assertion the courts would be required to take on the role of investigative tribunals. The well established principles of discovery do not permit a party to engage in such a fishing exercise.
Counsel for the respondent sought to rely on the absence of a denial by the appellant of the facts and matters alleged in paragraphs 17 and 18 both in these proceedings and in other proceedings in which he had unsuccessfully brought pursuant to the provisions of the Freedom of Information Act, 1997, as amended, challenging a decision to refuse him information under that Act relating to matters asserted in paragraphs 17 and 18 of his objections. In those other proceedings he also challenged, unsuccessfully, the lawfulness of a certificate given by the Minister in response to a request for information pursuant to s.25 of the Act declaring certain records maintained pursuant to specified statutes to be exempt from disclosure. Although the respondent himself relied on, and placed before the High Court in these proceedings, affidavits and exhibits which he had used in the Freedom of Information Act proceedings, the fact that the appellant has not denied the assertions of the respondent contained in paragraphs 17 and 18 of his objections or that he issued the certificate referred to does not, on the facts of this case, alter the position in which the respondent has placed himself and the Court due to a failure to provide any material whatsoever in support of such wide ranging and serious allegations. All the frailties in the respondent's application for discovery referred to above remain. Similarly the fact that cooperation and exchange of information between police forces and similar authorities may take place, as provided by statute, without the knowledge of a person concerned does not of itself mean that such a person in proceedings such as this is entitled, under the guise of discovery, to initiate an investigatory process or to be granted discovery on the basis of speculation.
For the foregoing reasons I agree with the decision and orders of this Court on the issue of discovery referred to above.
The respondent also filed a cross appeal seeking a broader order for discovery, in relation to the same matters, than that granted by the High Court. For the same reasons the cross appeal should stand dismissed.
Striking out of Paragraphs 17 and 18
It is a long established principle of practice and ethics that pleadings, affidavits and similar documents placed before a court should not be drafted so as to contain an allegation of fraud or serious illegality unless counsel, and/or the solicitor, have clear instructions to make such an allegation and have before them reasonably credible material that gives substantive support to such allegations. To constitute such material it must be material admissible in court in support of the allegations made. (For a current reference to that principle see, for exmple, Bullen and Leake and Jacob's, Precedence of Pleading 14th Ed. Vol. 2 at 809 which addresses the duty of counsel and solicitors in the context of allegations of fraud, dishonesty, malice and illegality). It is not sufficient for counsel or a solicitor to have a suspicion or even a personal belief that the other party has acted unlawfully. That is so even if the belief is based on information of some sort, if it is information or material which is not or cannot be relied upon in court. There must be substantive grounds for making allegations of such a serious nature on the basis of some material available to them which can be placed before a court in support of such allegations. There are a range of reasons, most of them obvious, for such a principle of practice and ethics including the fact that it would otherwise be open to any party to make the most outrageous allegations against another under the cloak of privilege whether out of malice or out of some personal belief which he is not able to stand over in court.
It is regrettable in this case that counsel, and it would appear his solicitor, from whom counsel took instructions in the course of the appeal before this Court when this matter was raised, did not apprehend or comprehend this principle and persisted in maintaining the allegations in paragraphs 17 and 18 notwithstanding an acknowledged failure to provide any evidence whatsoever in support of them. At one point counsel did make some allusion in a vague way to some "security" reasons for not making material available. It was not explained what was meant by this but such explanation would have been irrelevant since the fact remained that the respondent did not, and was not, by his own admission, in a position to provide the High Court with any material or evidence in support of the allegations made . Yet they were made and persisted with in such circumstances. It is hoped that counsel and solicitor now have a better appreciation of this principle.
For these reasons I agree with the Court's decision that paragraphs 17 and 18 of the objections be struck out as constituting an abuse of process.
