The High Court has ordered An Garda Síochána to provide copies of identified recordings to the court for private review in family proceedings involving access to children. The court has not yet decided whether any recordings should be disclosed to the parties or given to an assessor.
Mr Justice Max Barrett delivered the judgment on 12 February 2021. The recordings, described in the judgment as audio recordings, were held by Gardaí as part of an ongoing criminal investigation. The judge directed that copies be provided within five days of the order. He said the court would first listen to or view them to assess their relevance and weigh the public interest in the investigation against the proper administration of justice in proceedings concerning the children’s welfare.
The order followed two motions. A sought non-party discovery of recordings held by Gardaí, saying B had relied on recordings in family proceedings and that he needed access to address them fairly. B sought a direction that recordings of interactions with the children be furnished to an assessor for a Section 32 assessment.
According to an affidavit from a detective, B told Gardaí in December 2020 that she had recordings on two mobile phones. Gardaí said the recordings formed a material part of an investigation into alleged assaults against the children and alleged coercive control against B. The detective objected to disclosure at that stage, arguing it could impede the investigation. The judgment records those as the Gardaí’s position; it does not make findings on the underlying allegations.
The judge considered authorities on public interest privilege, including the Supreme Court’s decision in McLaughlin v Aviva. He noted that privilege may protect material forming part of an ongoing criminal investigation, but that the court must decide whether it applies. The judgment also addresses the statutory requirement to treat children’s best interests as paramount in proceedings concerning access and welfare.
The court said it could not carry out the required balancing exercise without seeing the recordings. It therefore directed Gardaí to provide copies, not the sole versions, to avoid the risk of erasure. Only after reviewing them would the court decide, recording by recording, whether privilege should be maintained or material released or shared for use in the family proceedings. The judgment did not determine A’s discovery motion, B’s request for the assessor, or the ultimate disclosure of any recording.