The High Court allowed part of Cecily Cunningham’s application for discovery in judicial review proceedings alleging prosecutorial delay, ordering discovery in two of four requested categories. It refused discovery in the other two, which concerned the investigation’s progress and the Director of Public Prosecutions’ consideration of the prosecution.
Cunningham, a professional officer of the Blood Transfusion Service Board (BTSB), sought to stay her trial on seven charge sheets. The judgment says the criminal investigation concerned contaminated blood products supplied by the BTSB. The DPP opposed the judicial review, denying that Cunningham was entitled to the relief sought and saying all reasonable steps had been taken.
The discovery application sought documents held by the DPP. The first category covered communications between prosecution authorities and the BTSB after October 1999; the second covered communications with Dr. Yap after that date. Cunningham’s case was that affidavits explaining the delay referred to correspondence that had not been exhibited, and discovery was needed before the scheduled cross-examination of affidavit witnesses.
The third category sought correspondence between the DPP’s office and Gardaí about the investigation’s progress. The fourth covered DPP office documents concerning matters arising from the prosecution. The DPP argued those categories would intrude on the special protection afforded to the Director’s decision-making.
The court said discovery in judicial review is harder to establish than in ordinary proceedings. An applicant must raise a substantial factual issue or provide evidence grounding a reasonable suspicion of unlawfulness; discovery cannot be a search for evidence to support an unsupported allegation. The judgment also recognised the force of Cunningham’s argument that access to materials can matter for effective cross-examination in delay cases.
But the court found no evidence that the DPP had acted in bad faith or for improper motives, and no suggestion that the evidence before the court was inaccurate or false. It concluded that the first and second categories were not relevant to the delay issue. By contrast, it considered the correspondence referred to in affidavits necessary to ascertain the reasons for the alleged unreasonable delay.
The court therefore allowed discovery in categories one and two and refused it in categories three and four, which related to the investigation’s progress and the DPP’s decision to prosecute. The ruling decided the discovery application only; the judgment does not determine the underlying judicial review claim or the trial.