The Supreme Court allowed the Minister for Justice’s appeal against an order requiring discovery of documents in proceedings seeking Brendan McGuigan’s surrender to Lithuania. It set aside the High Court order and struck out two additional objections as an abuse of process. The Court said the surrender proceedings could continue in the High Court.
The judgment, delivered by Murray J on 23 February 2012, concerned a European Arrest Warrant issued in Lithuania. The warrant related to three alleged offences, which the High Court described as involving terrorism and illicit trafficking in weapons, munitions and explosives. The allegations in the warrant included an alleged agreement to transport firearms, ammunition and explosives from Lithuania to Ireland to support the Real IRA. These were allegations, not findings by the Supreme Court.
The High Court had ordered the Minister to disclose, on oath, certain requests and responses for assistance involving Irish, Lithuanian or UK authorities, along with records of certain interception or surveillance of McGuigan. The Minister appealed. McGuigan also cross-appealed, seeking a broader discovery order.
The Supreme Court concluded that the requested material did not relate to the issues properly before the High Court. McGuigan’s objections included challenges to the warrant and claims about detention conditions and the Lithuanian justice system. The discovery request instead rested on allegations that UK military intelligence had conducted an unauthorised operation in Ireland and that evidence for a Lithuanian prosecution had been gathered unlawfully. The Court said there was no supporting evidence for those claims. It found that affidavit references to a possible search of McGuigan’s home were vague and did not establish when or where a search took place, who conducted it, or what was seized.
The Court held that discovery could not be used to search for evidence to support speculative allegations. It described the application as a fishing expedition and said the High Court had put the cart before the horse by ordering disclosure to help establish whether the asserted events had occurred. For the same reasons, it dismissed McGuigan’s cross-appeal.
The Court also struck out paragraphs 17 and 18 of the additional objections, which alleged an intelligence operation and an attempt to circumvent Irish constitutional and legal protections. It said serious allegations of illegality in court documents require credible, admissible supporting material. The Supreme Court did not decide whether any evidence was unlawfully obtained, or whether surrender should be ordered. It set aside the discovery order and left the substantive surrender proceedings to continue in the High Court.