The Court of Appeal has dismissed Nicholas Kendall’s appeal against a High Court refusal to order discovery of a Garda report concerning decisions to refuse him temporary release from prison.
The appeal concerned an interlocutory discovery application within Kendall’s judicial review proceedings. Those proceedings challenge decisions made in January and February 2017 by the Minister for Justice and Equality. The Court of Appeal did not decide the underlying judicial review challenge or whether the temporary-release refusals were lawful.
Kendall had pleaded guilty to offences involving explosives, a firearm and ammunition. He applied for temporary release under the Community Return Programme while serving his sentence. In communicating the refusals, an Irish Prison Service official said the decisions had taken account of information from An Garda Síochána, the nature and gravity of the offences, and the risk of offending during release. The official also said material from Kendall, his solicitor and the Probation Service had been considered.
Kendall argued in the judicial review proceedings that, among other things, the Minister had failed to give adequate reasons and had not disclosed the Garda information or its gist. He sought the report, or a record of the information, to support his challenge. His solicitor said he did not know what adverse Garda information was being relied on. The Minister’s officials opposed discovery, saying the reports were confidential and that disclosure could affect the flow of information used in prisoner management.
The High Court refused the application because Kendall had not established an evidential basis suggesting that reliance on the Garda view was arbitrary, capricious or unjust. On appeal, the Court of Appeal approved the approach in earlier cases: discovery in judicial review can be ordered where necessary for fair disposal, but a request cannot rest on speculation that a document might support a claim.
The Court of Appeal said there was no automatic right to the report. Discovery remained possible in a proper case, subject to any claim of privilege, but the applicant needed to raise a factual issue of sufficient substance or evidence grounding a reasonable suspicion of unlawfulness. The court found no such evidence in this case and dismissed the appeal.
The decision addressed only whether discovery should have been ordered at this stage. It did not determine the separate claims about the adequacy of reasons, fairness of the temporary-release decisions, or any public-interest privilege claim; the Court of Appeal said privilege did not arise for decision on this appeal.