The Supreme Court has dismissed an appeal by J. F., ruling that the deposition procedure in a criminal case could not be used to obtain confidential records held by a third party that were not part of the book of evidence.
The appeal concerned a District Court judge’s refusal to direct a health board social worker to produce notes from an interview with the complainant, identified in the judgment as Ms. L. J. F. was charged with sexual offences. His legal advisers argued that social work and other reports about the complainant could be relevant to the defence, including to credibility.
The Midland Health Board said its records concerning Ms. L were confidential and therapeutic. The Director of Public Prosecutions said the material was not then held by the prosecution and could not be disclosed by its office. The defence sought the records through witnesses called during depositions under the Criminal Procedure Act 1967.
The Supreme Court said depositions serve to help a District Court judge decide whether there is sufficient evidence or material to send a defendant forward for trial. They cannot be used as a general means of obtaining documents from a witness who had made no statement and whose evidence was not in the book of evidence. The court also reiterated that a subpoena requiring a witness to produce documents is not itself a disclosure device.
By the time the judicial review was heard in the High Court, the health board had handed its file to the DPP. The DPP carried out its disclosure review, and several documents were provided to the defence with the complainant’s consent. The High Court found no proven basis for alleging a breach of the DPP’s disclosure duties and refused judicial review. The Supreme Court agreed with that reasoning and said this development was sufficient to refuse the application.
The court did not decide whether an accused may, in some circumstances, obtain documents from a third party, including a state or state-funded body. It said that question remained open and would need to be decided in a suitable case by the court trying the defendant, with notice to the DPP, the body concerned and the Attorney General. The Supreme Court dismissed the appeal.