The Court of Appeal has dismissed appeals by the Commissioner of An Garda Síochána over disclosure of recordings in family proceedings involving the safety and welfare of minor children.
In a judgment delivered on 26 April 2024, Mr Justice Maurice Collins agreed with the judgment and proposed orders of Mr Justice Allen. He rejected the Commissioner’s argument that material connected to an ongoing Garda investigation was subject to an absolute, time-limited privilege that prevented a court from inspecting it or ordering its disclosure.
The family law proceedings had been compromised by the parties, meaning disclosure was no longer a live issue between them. The Court of Appeal nevertheless decided the appeals because the legal issues remained important and the High Court judgment and costs issues also required consideration.
The dispute concerned recordings sought for use in family proceedings. The High Court judge listened to them before deciding the disclosure issue. Collins J said courts decide claims of public interest privilege and may inspect disputed material when needed. They must balance the interests in the administration of justice and in preventing and prosecuting crime; the invocation of “investigative privilege” does not predetermine the outcome.
The judge had been entitled to give significant weight to the children’s interests and to the need for informed and timely decisions about their safety and welfare. Collins J said the Commissioner’s objection was limited and somewhat speculative: at its strongest, it was that disclosure might deprive the Gardaí of a potential forensic advantage if Mr A were prosecuted. No issue arose about disclosing confidential Garda intelligence or methods of crime detection or investigation.
The court’s decision does not establish that investigative material must always be disclosed. Collins J said claims must be assessed on their circumstances, and courts should ensure that only material of real importance to resolving child care proceedings is ordered disclosed. Courts may also control disclosure through redactions and restrictions on circulation or copying.
Collins J said the Commissioner was not to be criticised simply for asserting privilege, but suggested that An Garda Síochána reconsider its approach and avoid reflexive claims. He warned that waiting for an investigation to conclude may cause delays inconsistent with resolving disputes about children’s care promptly. The Commissioner’s appeals were dismissed.