The Supreme Court has set aside a High Court order requiring the Rape Crisis Centre to make formal discovery of documents sought by Derek Sweeney for the defence of a rape prosecution.
The order had been made by Mr Justice Smith on 29 May 2000 while sitting in connection with proceedings in the Central Criminal Court. It required the centre, which was not a party to the prosecution, to provide an affidavit of discovery identifying relevant documents in its possession, power or procurement.
A preliminary issue arose over whether the Rape Crisis Centre could appeal. Section 11 of the Criminal Procedure Act 1993 had abolished most appeals to the Supreme Court from decisions of the Central Criminal Court.
Mr Justice Geoghegan held, however, that the discovery order was not properly an exercise of the High Court’s criminal jurisdiction. Formal discovery of the kind ordered was a civil procedural mechanism derived from the Rules of the Superior Courts. The attempted exercise of that jurisdiction meant an appeal to the Supreme Court was available.
The court then examined whether ordinary civil discovery could be used in a criminal prosecution at all. It concluded that it could not. The judgment traced discovery to its origins in civil proceedings and found no basis for treating the procedural rules governing affidavits of discovery as applicable to criminal trials.
Mr Justice Geoghegan distinguished formal discovery from an accused person’s established entitlement to relevant material held by the prosecution. That disclosure obligation arises from the requirement for fair procedures in criminal trials and does not involve the civil machinery of sworn discovery affidavits.
The court also noted practical difficulties with applying civil discovery rules to criminal proceedings, including the fact that the prosecution must disclose its case while an accused generally has no equivalent obligation to reveal the defence in advance.
The Supreme Court therefore allowed the Rape Crisis Centre’s appeal and set aside the discovery order. It expressly left questions of privilege for determination if they arose later during the criminal trial.