The High Court has ruled that five defendants in a Northern Ireland civil action arising from the 1998 Omagh bombing may produce their books of evidence for inspection, but cannot produce official transcripts of their criminal trials for that purpose.
In a judgment delivered on 20 March 2008, Mr Justice Gilligan considered whether Irish law prevented the defendants from complying with production orders made by the Northern Ireland courts. The civil action, brought by victims who suffered bereavement or personal injury, was due for trial on 7 April 2008. The High Court did not decide the relevance or admissibility of the documents in that action, which were matters for the Northern Ireland trial judge.
The judge held that official stenographer transcripts are court records provided to appellants to assist with appeals. He found an absolute prohibition on disclosing their contents to third parties, which could not be bypassed through a discovery or production order in favour of a person who was not appealing a conviction or sentence. He concluded that Irish law therefore impeded the defendants from producing the transcripts for use in the civil case.
The books of evidence presented a different issue. The defendants argued that an implied undertaking restricted their use to the criminal proceedings and that disclosure could amount to contempt of court. The judge did not decide whether such an undertaking generally applies to books of evidence disclosed in criminal cases. Instead, solely for this application, he assumed that it did.
The judge found special circumstances to justify waiving that assumed undertaking. He gave significant weight to the Northern Ireland courts’ determination that production was necessary for a just resolution of the civil action, and to the Director of Public Prosecutions’ position that he had no objection in this case, subject to the court’s approval. The judge also concluded that production would not cause injustice to the defendants. He said the material was already available to the prosecution and would be used in the civil proceedings subject to the usual restriction against collateral use.
The court concluded that the defendants could discover and produce the books of evidence, or the relevant parts, covered by the Northern Ireland orders, without committing contempt. The ruling was limited to this case and did not establish a general rule on implied undertakings for criminal disclosure material.