Supreme Court grants public interest privilege to Garda DVRs pending prosecution decision in civil insurance fraud appeal.

THE SUPREME COURT

[Appeal No: 146/2011]

Denham C.J.

Hardiman J.

O'Donnell J.

Between/

Seamus McLaughlin

Plaintiff/Respondent

and

Aviva Insurance (Europe) Public Limited Company

Defendant/Respondent

and

The Commissioner of An Garda Síochána

Notice Party/Appellant

Judgment delivered on the 15th day of November, 2011 by Denham C.J.

1. The Commissioner of An Garda Síochána, the notice party/appellant, referred to in this judgment as "the Commissioner", claims

privilege in respect of certain items/documents on this appeal.

2. Seamus McLaughlin, the plaintiff/respondent, referred to as “the plaintiff”, has brought proceedings seeking a declaration, inter

alia, that Aviva Insurance (Europe) Public Limited Company, the defendant, is liable to indemnify the plaintiff in respect of loss and

damage suffered by him arising out of a fire which occurred on the 1st February, 2009, on the premises known as "The Waterfront",

situate at James Street, Moville, Co. Donegal.

3. By notification dated the 22nd January, 2010, Aviva Insurance (Europe) Public Limited Company, the defendant/respondent,

referred to as “the defendant”, refused to indemnify the plaintiff in respect of the insurance policy, on the grounds, amongst others,

that it believed that the plaintiff was responsible for setting fire to the Waterfront on the 1st February, 2009. In the defence lodged

on the 4th May, 2010, to the plaintiff’s claim, the defendant explained its refusal to indemnify the plaintiff, on the basis, inter alia,

that the claim made by the plaintiff was fraudulent and/or that fraudulent means and devices were used by the plaintiff and/or his

brother, Kevin McLaughlin, in an attempt to obtain a benefit under the policy. The defendant alleges that the plaintiff entered the

premises with his brother, Kevin McLaughlin, at approximately 03.07a.m., on the morning of the 1st February, 2009, and shortly

thereafter, one or both of them deliberately started the fire that damaged the premises.

4. This appeal arises in relation to a motion. On the 14th February, 2011, the Commissioner brought a notice of motion, dated the

13th September, 2010, before the High Court seeking an order that certain items were privileged and need not be discovered. The

motion sought an order:-

“ […]

2.(i) Permitting An Garda Síochána to refuse consent to discovery of

(a) The second DVR recorder recovered from the premises known as the Waterfront on the 13th of February 2009.

(b) The forensic reports prepared by

(i) Data Clinic Limited in respect of the recovered CCTV recorders and footage

(ii) The forensic report prepared by Critical Processes in respect of samples taken by Dr. Ormsby in

February 2009 from the site of the fire the subject matter of these proceedings;

on the basis that disclosure of same is privileged pursuant to Public Interest/InvestigativePrivilege.”

5. On the 14th February, 2011, the High Court (Commercial) (Kelly J.) ordered that the claim of public interest/investigative privilege

sought by the Commissioner be disallowed. He also refused an application for a stay and ordered that the discovery originally directed

on the 12th July, 2010, be made within twenty one days.

6. There is no formal record of the ex tempore judgment of the High Court. However, counsel's note of the judgment states:-

"This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject

matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police

investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the

Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and

two reports (being (a) a report prepared by the Data Clinic and (b) a forensic report prepared by Critical Processes). It is said that

the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by

the Gardaí, they were given to the Gardaí. We are therefore in the curious position in circumstances where the documents over which

privilege [is] claimed were not generated by the police.

Two authorities have been cited in support of the proposition Breathnach -v- Ireland No.3 and DPP -v- Corbett. In my view

Breathnach on its facts has little or nothing to do with this case. None of these deals with the situation where an investigation is

[on]going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to

discern any element of privilege where the Commissioner gets documents from one party to the proceedings.

The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the

possession of the police and they are going to carry out the process known as "cannibalisation". The Plaintiff wants to observe that

process through a representative. There is no authority entitling a Court to impose this upon An Garda Síochána. As to the fruits of

the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of

such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP

has seen the recording. I have no idea how long the DPP will take to do this.

This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make

in this case is to make no Order as to costs as the Application has not been successful."

7. The Commissioner has appealed that decision to this Court. By notice of appeal it was stated that the Commissioner would rely on

the following grounds:-

“(i) The learned Trial Judge erred in fact and in law in determining that the privilege of the nature asserted by the

Commissioner could not and did not apply to the documents and items over which such privilege was asserted.

(ii) The learned Trial Judge erred in fact and in law in determining that as the documents and items at issue were

not generated by the Commissioner no privilege of the type contended for by the Commissioner could be asserted in

respect of same.

(iii) The learned Trial Judge erred in fact and in law in determining the public interest/investigative privilege did not

apply to the subject documents and items in light of the fact that the subject documents or items were procured or

identified and received from one of the parties to the civil proceedings.

(iv) The learned Trial Judge erred in law and in fact in failing to properly or adequately take into account the proper

course of the criminal investigation identified by the Commissioner and by failing to properly or adequately consider

the concern expressed by the Commissioner that disclosure of the forensic reports specified at paragraph A of the

notice of motion dated the 13th of September 2010 could potentially disrupt the due and proper investigation of the

crime suspected.

(v) The learned Trial judge erred in fact and in law by directing disclosure of the material (report or data) (obtained

as a result of the process of cannibalisation of the DVR identified at paragraph A of the Notice of Motion dated the

13th of September 2010) after a period of 14 days had elapsed after cannibalisation of the said DVR on the grounds

that same fails to respect the investigative/public interest privilege contended for by the Commissioner.

(vi) The learned Trial Judge erred in fact and in law in refusing to award the Commissioner the costs of the

Application.”

Documents and items

8. The documents and items the subject of the appeal were described in the notice of motion dated the 13th September, 2010, which

have been set out earlier in this judgment. However, I understand that both DVRs are in issue, and not just the second DVR recorder

as described in the notice of motion.

9. The Commissioner sought an order that certain items were privileged and that discovery should be refused on the basis that

disclosure of the documents and items is privileged pursuant to public interest/investigative privilege.

Submissions

10. Written submissions were filed on behalf of the Commissioner and the plaintiff. The Commissioner submitted that there are two

competing aspects of the public interest being:-

(a) the public interest in the proper administration of justice; and

(b) the public interest in the detection, investigation and prosecution of suspected criminal offences.

It was submitted that the privilege claimed is not permanent, but to last only until the Director of Public Prosecutions decides that

there will be no prosecution or a prosecution is directed, at which time the items will be in the Book of Evidence. The plaintiff

submitted that the Commissioner, a non-party to these proceedings, cannot invoke privilege in circumstances where the defendant,

its servants and agents, have been in possession of the privileged material for a period of up to a year and a half from the

commencement of the criminal investigation and where it has already used that documentation to advance its defence of the

proceedings.

Law

11. There is a public interest which arises in some cases whereby certain matters may be privileged and may not be produced in

evidence. The decision as to whether evidence is privileged or not is a matter for the courts: Murphy v. Dublin Corporation [1972]

1 I.R. 215. There may be different aspects of the public interest. Walsh J. noted in Murphy v. Dublin Corporation at p. 233:-

"There may be occasions when the different aspects of the public interest ‘pull in contrary directions’—to use the words of Lord Morris

of Borth-y-Gest in Conway v. Rimmer [1968] A.C. 910, 955. If the conflict arises during the exercise of the judicial power then, in

my view, it is the judicial power which will decide which public interest shall prevail. This does not mean that the court will always

decide that the interest of the litigant shall prevail."

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 any 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 the criminal trial or after it has been decided not to

prosecute, there is no need for the privilege.

13. It is an important part of an analysis of this type of privilege that it exists only for a limited time. Thus, it would apply only until

the criminal trial is concluded or until the Director of Public Prosecutions has decided not to prosecute. It is not unusual that a civil

trial awaits the conclusion of a criminal trial.

14. The special position of the Director of Public Prosecutions was referred to by Keane J. in Breathnach v. Ireland (No.3) [1993] 2

I.R. 458 at 471:-

"As has also been frequently pointed out, the privilege is that of the client and may only be waived by him. The

position of the Director of Public Prosecutions is, of course, somewhat different: he does not stand in the

relationship of "client" to any other lawyer. He is in a sense both lawyer and client, since he formulates the legal

opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties

to the subsequent litigation. However, be that as it may, the public policy which protects from discovery

communications in the first category undoubtedly applies equally to communications between the Director of Public

Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are

in being or contemplated."

In this instance, the privilege sought is different and is only for a limited time i.e. until the case is prosecuted or a decision is made

not to prosecute in the criminal courts.

Decision

15. The items of which the Commissioner seeks to claim privilege are required for the purpose of civil proceedings between the plaintiff

and the defendant and also for a criminal investigation. The Commissioner claims privilege pending the decision not to prosecute or

pending the service of a Book of Evidence, which would contain the items.

16. There is a public interest privilege in documents which are a material part of a criminal investigation. There is a public interest

privilege in documents created, sought, or obtained for, and relevant to, a criminal prosecution by a prosecutor.

17. The fact that the documents and/or items were not originally created by a prosecutor does not exclude them from privilege as

there is a public interest privilege in documents and/or items which are a material part of a criminal investigation.

18. The onus to establish that the privilege lies upon the person seeking the privilege. In this case, the Commissioner carries the

onus.

19. I am satisfied that it is established that the documents and items sought, being the two DVR recorders and the two forensic

reports, are privileged. This privilege exists until the decision is made not to prosecute or until the decision is made to prosecute,

when the matters will be disclosed in the Book of Evidence.

20. The fact that these documents and/or items were not originally created by An Garda Síochána does not prevent them attracting

privilege. They are now material documents and items in a criminal investigation by An Garda Síochána and they attract privilege on

the basis of public interest and investigative privilege.

21. The fact that the documents arose in civil proceedings does not mean that the privilege does not apply to them. They are now a

material part of a criminal investigation and, as a consequence, privilege attaches to them.

22. On occasions, when considering a privileged document, the court may have to balance interests. However, the issue of balancing

interests does not arise in this case.

23. Thus I would order that the items are privileged and may not be discovered until either the decision has been made to prosecute,

when disclosure will be made in the Book of Evidence, or a decision is made not to prosecute, when the privilege ceases.

24. This case is decided upon its facts and circumstances. The issues raised are important and may arise for further consideration in

another case, where there would be more elaborate argument and scrutiny than was available in both the High Court and in this Court

in this case.

25. An additional issue arises in that the plaintiff seeks that his experts see the items before they are altered, and attend at the

process by which they are "cannibalised", and after. This is not an order that I would make. However, it does raise a degree of alarm

that evidence may be destroyed. I draw attention to the possibility of difficulties arising if the experts of the plaintiff are excluded.

However, that is a matter for the prosecutor.

26. In conclusion, for the reasons given, I would allow the appeal and order that there is a public interest privilege in the items and

would therefore order that there be no discovery until the privilege has ceased to exist either by way of a decision not to prosecute,

or by a decision to prosecute when the matters will be disclosed in the criminal proceedings.