The Supreme Court allowed Cecily Cunningham’s appeal against a High Court order refusing discovery of correspondence between the Director of Public Prosecutions and gardaí. The Court ordered the Director, or his agent, to make an affidavit listing every document in the relevant correspondence, whether or not the Director would disclose it. Any objection to producing a document is to be dealt with according to law.
The appeal concerned a judicial review challenge based on delay in prosecuting Ms Cunningham. She was charged in July 2003 with seven offences under the Offences Against the Person Act 1861, alleged to have occurred in 1977 and 1991 or 1992. The charges alleged that contaminated Anti-D caused grievous bodily harm. Those allegations were not findings in this appeal.
Before the charges, an Expert Group investigated the Anti-D product and reported in 1995. A Tribunal of Inquiry, led by former Chief Justice Thomas Finlay, reported in March 1997. Its report and hearing transcripts were sent to the Director. The judgment said the file remained in the Director’s office for six years and three months before Ms Cunningham was charged. She argued that the delay impaired her ability to defend herself, including because relevant people had died or were unavailable. The Director said the investigation was exceptionally complex and involved extensive material and legal issues.
In affidavits opposing the delay claim, the Director’s representatives referred to correspondence and further inquiries between the Director’s office and garda investigators, as well as communications involving the Blood Transfusion Services Board and Dr Yap. Ms Cunningham sought the correspondence to test the explanation for the delay and to cross-examine two officials. The High Court had ordered discovery of communications with the Board and Dr Yap after October 1999, but refused discovery of specified correspondence between the Director’s office and gardaí.
The Supreme Court distinguished this case from *Dunphy v DPP*, which concerned a direct request for the reasons behind a decision to prosecute. Here, the correspondence was referred to in affidavits to support the Director’s explanation for delay. The Court relied on the principle that a party must be able to check whether material deployed by its opponent represents the relevant material fully and accurately.
The Court stressed that its order did not reduce the Director’s protection regarding reasons for prosecutorial decisions. The Director may claim privilege over any document, all documents, or any portion of a document. The appeal concerned the discovery affidavit; it did not determine the underlying judicial review claim or decide whether the delay was justified.