The Court of Appeal has dismissed an appeal by serving garda David James Bourke against the refusal of leave to seek judicial review over a pre-trial disclosure ruling in his forthcoming criminal trial.
Bourke is charged with two counts of corruption under the Criminal Justice (Corruption Offences) Act 2018. The prosecution case, as summarised in the judgment, is that a recorded conversation in December 2018 concerned information about a criminal investigation, a €20,000 payment and advice on protecting the position of his co-accused, Stephen O’Sullivan. Bourke accepts that the conversation took place but says he was trying to recruit O’Sullivan as an informant. He alleges that an informant identified as JC engineered the meeting.
The disclosure requests concerned material about JC, Bourke’s work with covert human intelligence sources, and an interview with a person identified as PB. In May 2023, the President of the Circuit Court, Ryan P., reviewed material provided by the prosecution and declined to order disclosure, finding it irrelevant to the State’s case. She indicated she would be assigned as trial judge and has a continuing duty to review disclosure issues during the trial.
Bourke sought leave in the High Court to pursue judicial review, including an order to quash the disclosure ruling and an order compelling disclosure. The High Court refused leave, finding no arguable case. The Court of Appeal, in a judgment delivered by Ms Justice Tara Burns on 14 June 2024, upheld that decision.
The Court of Appeal said judicial review of a trial judge’s ruling during an ongoing criminal case is generally inappropriate unless exceptional circumstances arise. It found Bourke’s disagreement with the relevance assessment did not meet that threshold. The trial judge is the appropriate person to assess relevance and privilege, and the disclosure duty continues throughout the trial. If the relevance decision remains disputed after a conviction, the issue may be raised on appeal, the court said.
The court also rejected the arguments that Irish law had failed to implement the EU directive on access to case materials and that the requested remedies were otherwise arguable. It said the domestic disclosure regime met or exceeded the directive’s requirements. The court noted that two trial dates had been vacated because of the judicial review proceedings.
The ruling concerns only the appeal against refusal of leave to seek judicial review. It does not determine Bourke’s guilt or the merits of the criminal charges.