The Court of Appeal rejected L.K.’s challenge to orders requiring three witnesses to produce her medical records under an Irish mutual-assistance procedure for a criminal retrial in the UK. It upheld the High Court’s interpretation of the statutory compellability test, but did not decide the separate privacy issue in the judgment provided.
The appeal arose from a UK request for evidence concerning L.K., who had testified at an earlier trial of a UK citizen accused of murdering an Irish citizen whose body has not been found. That trial was aborted for unrelated reasons, and L.K. was expected to testify at the retrial. The defence had asked the UK Crown Prosecution Service to obtain her medical records for disclosure purposes.
Under the Criminal Justice (Mutual Assistance) Act 2008, the Minister for Justice asked for a District Court judge to receive the evidence. Three witnesses—a religious sister, L.K.’s general practitioner and an HSE patient services officer—were summoned to produce records. L.K. opposed their release and asserted privilege. The District Court judge ordered production, and the records were produced.
L.K. argued that Irish criminal procedure did not allow third parties to be compelled to provide documents for disclosure in criminal proceedings. She said the mutual-assistance procedure could not be used to obtain records that would not be compellable in an Irish criminal case. The Minister accepted that Irish courts had recognised no third-party disclosure procedure for domestic criminal proceedings, but argued that the statutory test concerned whether the witnesses could be compelled as a matter of law.
Writing for the Court of Appeal, Edwards J. said medical records do not carry an absolute privilege against production. Their confidential nature and the patient’s privacy may support an objection, which a court would consider as a matter of discretion. The Court accepted that the records could not be compelled solely for disclosure in Irish criminal proceedings because there was no lawful procedural means to require that third-party production. But it said the UK request was for transmission to the UK prosecuting authority under a procedure permitting that authority to assess the records and potentially disclose them in the UK case.
The Court held that section 64(1)(a) of the 2008 Act addresses compellability as a matter of law, rather than procedural obstacles. It therefore upheld the High Court judge’s interpretation and rejected this ground of appeal. The judgment said the Court would await counsel’s submissions on whether it needed to reconvene to hear the appellant’s separate privacy challenge. It did not determine that issue in the decision provided.