A Supreme Court judge said the applicants had not given the court enough information to decide whether material from Irish criminal proceedings should be produced for use in civil proceedings in Northern Ireland.
In a judgment delivered on 16 July 2008, Mr Justice Hardiman said he would have allowed the appeals and dismissed the cross-appeal because the applicants’ case lacked the detail needed to decide whether permission should be granted. He disagreed with the order proposed by Mr Justice Geoghegan, while agreeing with the legal principles set out in Geoghegan’s judgment, including that a court may permit production where needed to do justice and where it causes no relevant legal prejudice.
The requested material comprised Books of Evidence and transcripts from criminal proceedings. Hardiman J said the applicants had not explained what they intended to do with the documents or established their evidential status and possible use in Northern Ireland. Without that information, he could not assess potential prejudice to the defendants. He noted that the defendants had not pressed the point emphatically, but said the initial burden of proof rested on the applicants.
Hardiman J also questioned why the applicants had sought orders against the defendants, who had received copies in their capacity as accused persons, rather than applying to the State authorities that held the original material and had produced it for the criminal proceedings. He said the defendants were not responsible for the documents’ accuracy or how the material had been obtained, and that some of it was disputed.
He described the evidence of an FBI undercover informer as unusual and said he would need to know how it was intended to be used before deciding whether to permit its production. He also cautioned that Books of Evidence consist largely of prosecution witness statements and may include disputed or inadmissible material.
The judgment records Hardiman J’s proposed disposition only. It does not state the court’s collective final order; his conclusion was that there was insufficient information to decide whether to grant or withhold permission.