High Court orders disclosure of search warrant affidavit to support plaintiff's negligence and constitutional rights claim.

Neutral Citation [2016] IEHC 549

THE HIGH COURT

[2014 No. 7727P]

BETWEEN

FRANCIS McGUINNESS

PLAINTIFF

and

THE COMMISSIONER OF AN GARDA SÍOCHÁNA,

IRELAND and THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice David Keane delivered on the 7th of October 2016

Introduction

1. This is an application for an order compelling the Garda Commissioner to furnish the plaintiff with a copy of the sworn information

grounding the successful application that was made to the District Court on the 21st August 2014 for a warrant to search the

plaintiff’s premises at Hillcrest, Cloghran, County Dublin.

2. The application is interlocutory in nature. It is brought in the context of the plaintiff’s action for damages for negligence;

misfeasance in public office; trespass; conversion and detinue; and breach of his constitutional rights, together with certain

injunctive reliefs, arising from the search of his premises, and the seizure from them of certain property, by members of An Garda

Síochána on the 23rd August 2014.

Background

3. The plaintiff owns business premises at an address which he describes as Pinnock Hill, Swords, County Dublin and which has been

described by his solicitor in correspondence on his behalf as Pinnock Hill, Cloghran, County Dublin. The premises comprise a yard that

is used for the storage of haulage vehicles.

4. Early on the morning of the 23rd August 2014, members of An Garda Síochána conducted a search of those premises under a

warrant issued by a judge of the District Court on the 21st August 2014, pursuant to the terms of s. 10 of the Criminal Justice

(Miscellaneous Provisions) Act, as substituted by s. 6 of the Criminal Justice Act 2006.

5. The said warrant recites that as a result of hearing the evidence on oath of Sergeant James P. Fraher of Cavan Garda Station, the

District Judge was satisfied that there were reasonable grounds for suspecting that evidence of, or relating to, the commission of an

arrestable offence was to be found at a place, namely, Hillcrest, Cloghran, County Dublin. The warrant describes the said evidence as

‘to wit documentary, telephone, computer and any other evidence relating to motor vehicle 98 D 55178, including the cut off section

of the roof, the registration plates and steel cuttings consistent with cut offs from the metal used on motor vehicle 98 D 55178.’ The

warrant goes on to recite in material part that ‘this vehicle was recovered at Quinn Packaging, Rathkeelan, Ballyconnell, Co. Cavan.’

6. The plaintiff has now been provided with a copy of that warrant.

Procedural History

7. The plenary summons in the plaintiff’s action issued on the 2nd September 2014. On the following day, the plaintiff issued a motion

seeking interlocutory injunctive reliefs, including, most notably in the present context, an order compelling the Garda Commissioner to

furnish him with a copy of the warrant authorising the search of his premises. By the time that application came on for hearing before

me on the 15th October 2014, the parties had reached agreement on the provision of a properly legible copy of the said warrant, and

the plaintiff’s motion was struck out.

8. On the 22nd January 2015, the plaintiff delivered his statement of claim. The defendants raised a notice for particulars on the 3rd

February. Before furnishing replies to particulars, the plaintiff issued a further notice of motion on the 10th March, seeking an order

compelling the Garda Commissioner to furnish him with a copy of the sworn information that was used to ground the search warrant

application. The defendants subsequently issued a motion seeking an order compelling replies to particulars.

9. When both of those applications came before the Court on the 24th June last year, by agreement between the parties, the

defendants’ motion was struck out with a direction that replies to particulars were to be furnished within two weeks. The defendants

were to have their costs of that motion with a stay on that order pending the determination of the proceedings. The plaintiff’s

application proceeded and, having heard the submissions of the parties, I reserved judgment upon it.

Issues and Evidence

10. The legal basis for the application has not been made clear. It is trite to observe that, in civil proceedings generally, where one

side seeks disclosure of a document in the possession of the other, the appropriate course is to bring an application for discovery in

accordance with the applicable rules of court, and thereafter to seek inspection of that document in accordance with those rules.

Thus, one would not normally expect the issue of discovery to arise until the pleadings have closed; one would expect any application

to court for an order for discovery to be preceded by a preliminary letter in the prescribed form seeking voluntary discovery, and so

forth. The pleadings in this action are not closed, the relevant procedural rules have not been complied with, and the present

application is not couched as one for discovery or inspection of the relevant document.

11. Counsel for the plaintiff submitted that the application was brought simply as an alternative to bringing an application in the

District Court for an order, pursuant to the provisions of Order 35, rule 3 of the District Court Rules, directing the clerk of that court

to furnish a copy of the sworn information to the applicant. This was done, according to Counsel, on the basis that, since either the

grant or refusal of any such application was likely to become the subject of a subsequent challenge by the unsuccessful party in this

Court, the potential saving in time and cost of making the application directly to this Court in the first instance should foreclose any

inquiry there might otherwise be into the jurisdictional basis for doing so.

12. That is not a persuasive argument in principle, since this Court cannot, and should not, base the exercise of its own original

jurisdiction on speculation about the potential significance of a hypothetical first instance decision in an inferior court or about the

contingent intentions of each of the parties affected by that decision. Nor is it a persuasive argument in fact in this case since, as

Counsel for the defendants pointed out, the recent decision of this Court (per Kearns P.) in Lenaghan v District Judge Flann Brennan

[2015] IEHC 143 establishes that the jurisdiction conferred upon the District Court under Order 35 of the Rules of the District Court

does not enable a person who is not a party to any proceedings before that court to obtain a copy of any information in the custody

of it, nor does it permit a judge of that court to direct the clerk to furnish a copy of any such information to a person for the purpose

of any legal proceedings other than proceedings before the District Court.

13. That would be the end of the matter as far as this application is concerned were it not for two further considerations. The first is

the invocation by Counsel for the plaintiff of the observation of Fennelly J., giving judgment for a unanimous Supreme Court in

Creaven & Ors v Criminal Assets Bureau & Ors [2004] 4 I.R. 435 (at 467), that he deplored the refusal of the relevant respondent in

that case to provide the applicants with ‘copies of the essential documents which had been used to ground the applications for the

warrants.’ It may very well be that the observation concerned was directed to the particular circumstances of that case. However, it

might equally be suggested that this was a tacit acknowledgment of some freestanding right on the part of a person whose property

rights have been interfered with through the execution of a search warrant to be furnished not merely with a copy of the relevant

warrant but also with a copy of the essential documents used to obtain it, in order to enable that person to be properly satisfied of

the lawfulness of that interference.

14. The second additional consideration is the express concession made on behalf of the defendants at the hearing of the application

that they were prepared to address it on its merits without prejudice to their contention that the application was premature and that

is had not been brought in accordance with the rules. In light of that concession, though not entirely without some misgivings, I have

come to the conclusion that I ought to consider the merits of the application, leaving the question of whether the procedure by which

it has been brought before the Court is a valid one to await resolution in an appropriate case in which the point is directly raised and

properly argued.

The plaintiff’s position

15. The plaintiff’s case is simply stated. The affidavit sworn on the 9th March 2015 by the plaintiff’s solicitor, Mr John Geary, to

ground the present application includes the averment ‘I say and believe and am advised that a citizen is entitled to see any

information sworn by a member of An Garda Síochána concerning them and proffered in open court subject to such claims of

confidentiality or security that the Gardaí may choose to assert.’ While the proposition might be more attractively couched by

reference to the property rights of the individual, rather than the status of that individual as a citizen, considered in conjunction with

an accomplished interference with – or qualification upon - those property rights through the execution of a search warrant, the tenor

of the relevant proposition is tolerably clear and I did not understand the defendants to take issue with it in principle.

16. Alternatively, addressing the present application as, in substance though not in form, one for an order directing the Garda

Commissioner to make discovery of the relevant document, it may be appropriate to note the plea in the material part of paragraph 10

of the plaintiff’s statement of claim that the relevant search was ‘carried out in an unlawful manner, inter alia: flawed sworn

information’, although that plea is a little puzzling in circumstances where the plaintiff and his legal advisers profess to be entirely

unfamiliar with the contents of that document. Ignoring the fact that the tests of relevance and necessity are only generally applied

once issue had been joined between the parties after a defence has been delivered, or assuming instead that the relevant plea will be

met with a denial in the defence to be delivered in due course, it can no doubt be argued with some force that the disclosure of the

sworn information is of central relevance to the issue of whether that document is – in some, as yet unspecified, way - flawed and,

thus, that its discovery is necessary for disposing fairly of the action. Again, I do not understand the defendants’ objection to the

disclosure of the document to be based on any ground of discoverability per se.

The defendant’s position

17. The defendants’ position, as I understand it, is that the contents of the sworn information are privileged against inspection, either

in whole or in significant part, as they are covered by informer privilege or the by the public interest privilege associated with the

investigation of crime, or both.

18. To ground their opposition to the plaintiff’s application on that basis, the defendants rely upon two affidavits sworn by Detective

Inspector Fergus Treanor on the 8th October 2014 and the 28th April 2015 respectively.

19. D.I. Treanor avers that he has been appointed the senior investigating officer concerning a spate of incidents of criminal damage

to properties owned or connected with the Aventas group, formerly the Quinn group, of companies. The inspector then makes a

number of statements on oath to the following effect.

20. The inspector is investigating the following incidents:

(a) On the 8th August 2011, the residence of Paul O’Brien, chief executive officer of Aventas, was damaged when a

vehicle was set alight in the driveway of that property at Ratoath, County Meath.

(b) On the 30th November 2013, a crane with a value of €250,000, the property of the Quinn group, was set alight at

Ballinamore in County Leitrim.

(c) On the 7th January 2014, a 52 seat bus that had been filled with tyres was set alight and driven through the gates at

the Aventas factory complex in Ballyconnell, County Cavan.

(d) On the 9th February 2014, machinery with a value of €80,000 was damaged at the Lagan Quarry, Cobh, County Cork

in circumstances where Lagan had expressed an interest in purchasing a division of the Quinn group.

(e) On the 13th March 2014, a Jeep Cherokee motor vehicle, from which the roof had been cut off and which had been

fitted with bull bars and filled with tyres, was set alight and driven into the lobby of the Quinn packaging plant at

Ballyconnell, County Cavan, causing damage to the plant estimated at in excess of €600,000. This was done at a time

when over 30 employees were present at the plant.

(f) On the 28th March 2014, a business named CEVA Logistics, which had taken over the management of the

Aventas/Quinn transport fleet had its premises and compound at Glanmire, County Cork damaged when a vehicle was set

alight and driven at the gates.

21. The total cost of the damage caused by the attacks just described is conservatively estimated to exceed €3 million.

22. The inspector is also involved in a joint police investigation with the Police Service of Northern Ireland (‘PSNI’) in respect of similar

attacks on properties connected with the Aventas, or Quinn, group there. According to the inspector, An Garda Síochána and the

PSNI are working with police forces around Europe to gather intelligence and evidence to establish the persons responsible for the

attacks described.The inspector states his belief that the intelligence and evidence being gathered is of a highly sensitive nature

which, if released, would greatly assist the perpetrators of those crimes and their associates.

23. The inspector believes that the motor vehicle bearing the registration number 98 D 55178, referred to in the search warrant at

issue in this case, was used in the attack on the Quinn packaging plant at Ballyconnell, County Cavan that occurred on the 13th

March 2014 and that the said motor vehicle is connected with the plaintiff.

24. The investigation has identified specific evidence which led to the application to the District Court for the warrant to search the

plaintiff’s premises.

25. D.I. Treanor’s second affidavit, sworn on the 28th April 2015, includes the following averments:

‘6. I further say and believe that the fundamental sworn information used to ground the application for the warrant is

privileged and confidential. I say that Gardaí have relied upon the evidence and information supplied by a number of

confidential informants whose lives would be at risk if their identity was made known. I further say and believe that a

number of members of An Garda Síochána are in the process of conducting an investigation both in Ireland and in Europe

which at this moment in time is at a particularly sensitive stage. I say that if the information used to ground the

application for the warrant was made public the identities of the informers and the individual members of the Gardaí would

become known and their lives could be at risk. I further say and believe that the information currently being gathered for

the purpose of this investigation is not yet fully complete and were it to become known it could jeopardise the full extent

of the ongoing operation.

7. I say and believe that An Garda Síochána, like any other police force, must have an ability to investigate matters fully

and it is not in the public interest for incomplete investigation information to become widely known.

8. I further say and believe that the only reason that [the plaintiff’s solicitor] asserts that [the plaintiff] is entitled to see

the information used to ground the warrant is that he is a citizen of Ireland. I further say that [the plaintiff’s solicitor]

accepts at paragraph 3 of his affidavit that An Garda Síochána are entitled to claim confidentiality over the information

sworn for security purposes. I say and believe that, in the circumstances, there are matters of security, confidentiality

and indeed there may be lives at risk which give the [defendants] herein strong grounds to assert privilege over this

information.’

The law

26. In McLaughlin v Aviva Insurance (Europe) plc [2012] 1 ILRM 487, the Supreme Court (per Denham C.J., O’Donnell J. concurring)

reiterated that there is a public interest privilege in documents which are a material part of a criminal investigation, including

documents created, sought, or obtained for, and relevant to, a criminal prosecution by a prosecutor. More particularly, Denham C.J.

stated (at 491-2):

‘12. There is a public interest in criminal investigations carried out by An Garda Síochána. Lord Reid stated in Conway v

Rimmer [1968] A.C. 910 at p. 953-954:-

“The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is

essential that there should be no disclosure of anything which might give useful information to those who organise

criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be

material in a pending prosecution; but after a verdict has been given or it has been decided to take no proceedings

there is not the same need for secrecy.”

I agree with the analysis that in general documents material to an ongoing criminal investigation by An Garda Síochána

should not be required to be disclosed in civil proceedings. However, after the verdict in a criminal trial or after it has

been decided not to prosecute, there is no need for the privilege.’

27. In a separate concurring judgment, O’Donnell J. made the point that the temporal limitation on the privilege does not raise, much

less determine, any issue of priority between civil and criminal proceedings. In that case, as in this, the Garda Commissioner was not

seeking a stay on the plaintiff’s civil proceedings against the State. Rather, should the assertion of the relevant privilege prove

successful, the plaintiff will simply be presented with a choice either to proceed with his civil action without the benefit of discovery

of the material concerned or wait until the conclusion of the criminal investigation or prosecution, at which point the relevant public

interest privilege will generally fall away and the material will become available.

28. Quite apart from the assertion of public interest privilege in relation to a continuing Garda investigation, it is plain from the

relevant averments of Detective Inspector Treanor concerning ‘evidence and information supplied by a number of confidential

informants’ that the defendants are also invoking informer privilege. In D. v N.S.P.C.C. [1978] A.C. 171, Lord Diplock explained the

rationale underpinning that ancient privilege in the following way (at 218):

‘The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of

law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting

crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest

that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to

adjudicate should be withheld from that tribunal.’

29. The privilege yields only to the ‘innocence at stake’ exception, which does not arise in the context of the present proceedings. As

against that proposition, it is important to bear in mind that the mere assertion that documents contain confidential communications

between Gardaí or information that has been given to the Gardaí in confidence is not, in and of itself, sufficient to establish the

privilege. As the decision of the Supreme Court in DPP v Special Criminal Court [1999] 1 I.R. 60 confirms, where informer privilege is

asserted on the basis that there will be a real threat to the life of such persons if their identities are disclosed, the appropriate course

is for the court to inspect the material concerned in order to determine whether the claim should be upheld.

30. It seems to me to be an unusual feature of this case that the court is invited to accept that the sworn information at issue either

directly identifies an informer or informers or that it includes such facts as would permit the identification of the confidential

informant(s) concerned on a circumstantial or ‘jigsaw’ basis. Such sworn documents as the court has seen previously in cases where

informer privilege is at issue, tend to describe the relevant ground of suspicion as deriving from ‘information received from a

confidential informant who has proved reliable in the past’ or some broadly equivalent formulation. Further, I had always understood

that the essential art or science of the preparation of such documents lies in the presentation of sufficient evidence to satisfy the

court of the existence of reasonable grounds for suspicion that the relevant evidence may be found at the place concerned without

disclosing specific facts that might compromise the relevant investigation if more widely known or, worse still, permit the identification

of a confidential informant. Of course, this may be an unusual case where the former could not be accomplished without risking the

latter. Alternatively, the practice may have altered since the enactment of s. 26 of the Criminal Justice (Amendment) Act 2009,

whereby applications for search warrants are now heard otherwise than in public.

31. In Ambiorix v Minister for Environment (No. 1) [1992] 1 I.R. 277, Finlay C.J. summarised the principles concerning the

determination of any assertion of public interest privilege in the following terms (at 283):

‘1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers

in the courts set up under the Constitution.

2. Power to compel the production of evidence (which, of course, includes a power to compel the production of

documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.

3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the

production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of

documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which

public interest shall prevail.

4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the

production of evidence over other public interests, such as the security of the Sate or the efficient discharge of the

functions of the executive organ of the Government.

5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that

decision.’

32. In Keating v RTÉ [2013] IESC 22, having setting out the principles just quoted, McKechnie J. went on to state as follows (at para.

36 of the judgment):

‘In the implementation of these principles the following practice has developed:

(i) in general, where competing interests conflict the court will examine the text of the disputed document and determine

where the superior interest rests; it will carry out this enquiry on a case-by-case basis;

(ii) this exercise may not always be necessary. On rare occasions, it may be possible for the court to come to a decision

solely by reference to the description of the document as set out in the affidavit; that is, without recourse to an

examination of the particular text of the document itself (Breathnach v Ireland (No. 3) [1992] 2 I.R. 458 at 469);

(iii) in all cases however (and this is the crucial point) it will be for the examining court to both make the decision and to

decide on what material is necessary for that purpose; and finally

(iv) in performing this exercise, no presumption of priority exists as between conflicting interests.’

Conclusion

33. Applying those principles to the evidence before me, I propose to examine the text of the sworn information at issue in order to

identify and weigh the competing interests in compelling or withholding its production.