The Supreme Court dismissed D.H.’s appeal over a bid to obtain records held by the North Eastern Health Board in advance of his criminal trial. It affirmed the High Court order and held that the Circuit Court had no jurisdiction to make the third-party discovery order sought.
D.H. had been returned for trial in the Circuit Court on charges of indecent or sexual assault against S.H. The alleged offences were said to have occurred on various dates between June 1983 and June 1989, when S.H. was aged between six and 12. These were allegations described in the judgment; the appeal concerned access to records, not whether the charges were proved.
D.H. sought reports, notes and records held by the health board concerning allegations by S.H. The request followed evidence at a preliminary examination in May 1999 from two social workers who had dealt with her. The Circuit Court refused the discovery application, citing the lack of a demonstrated basis to think the records would assist the defence and the public interest in keeping sensitive communications confidential. The judge also considered that available documents had already been produced, though the Supreme Court noted that the appeal papers suggested some notes or diary entries had not been present at the examination.
The High Court dismissed D.H.’s judicial review claim. By then, S.H. had consented to the records being furnished to the defence, and the health board had identified nine documents that could be subject to discovery. The High Court said the appropriate course was to seek further and better discovery in the Circuit Court.
On appeal, the Supreme Court considered whether it should depart from its October 2001 decision in *Derek Sweeney v The Rape Crisis Centre and Others*, which held that the High Court had no jurisdiction to order third-party discovery in criminal proceedings. It declined to do so, finding no compelling reason to revisit that ruling, and said it was correct in law.
The court distinguished civil discovery from the prosecution’s duty to disclose relevant material to the defence. It said civil discovery rules were unsuited to criminal trials, where the prosecution must disclose its case but the accused is generally not required to identify the issues he will raise before trial. It added that fair procedures could be supported through other means, including seeking records at the deposition stage and requiring witnesses to attend trial with relevant documents under subpoena.
The court also said the Circuit Court judge had carefully balanced confidentiality against the interests of justice and was entitled to find that the applicant had not shown the records’ particular significance to his defence. It dismissed the appeal and affirmed the High Court order.