The Supreme Court upheld a claim by the Garda Commissioner to withhold material from disclosure in civil proceedings while it was bona fide required for an ongoing criminal investigation, according to observations by O’Donnell J in a judgment delivered on 15 November 2011.
The civil action was brought by Seamus McLaughlin against Aviva Insurance (Europe) Public Limited Company. The Commissioner of An Garda Síochána was a notice party and appellant. The discovery claim covered CCTV footage and two expert forensic reports prepared for the insurers. O’Donnell J noted that the reports belonged to the insurers, not McLaughlin.
O’Donnell J said he agreed with the Chief Justice’s judgment but differed from Hardiman J on the outcome and significance of the case. He considered the law settled: Gardaí may resist disclosure of material shown to be necessary for an investigation, even where a prosecution has not yet begun. He said that protection could last until a prosecution was commenced, a decision not to prosecute was made, or possibly a reasonable time had passed for that decision.
He stressed that the Commissioner was not seeking to stop the civil proceedings. The parties could choose to continue without the material, as a party might after failing to challenge legal professional privilege, or wait until the immunity ceased to apply through disclosure in criminal proceedings or a decision not to prosecute.
O’Donnell J described the claim as relating to the particular importance of these items to the investigation, rather than a general class of documents. He said a court could inspect the material where appropriate or necessary, but was not required to do so where the basis for the claim was clear. In this case, he said, there was no dispute about the material or the Commissioner’s assertion that it was needed for the investigation; the issue was whether that justified immunity, which he considered it did for the reasons given by the Chief Justice.
He added that whether a reasonable time had passed for the prosecution authorities to decide whether to prosecute was not determined. If that question arose, he said, it would require evidence specifically addressing it. The extract sets out O’Donnell J’s observations and agreement with the Chief Justice; it does not reproduce the Chief Justice’s full judgment or the Court’s formal order.