The Supreme Court has ruled that two digital video recorders and two forensic reports connected to a 2009 fire in Moville are protected by public interest privilege while a criminal investigation remains unresolved. It allowed an appeal by the Commissioner of An Garda Síochána and ordered that the items not be disclosed in related civil proceedings until a decision is made whether to prosecute.
The appeal concerned a dispute over insurance cover for The Waterfront, a premises on James Street, Moville, damaged by fire on 1 February 2009. Seamus McLaughlin is seeking a declaration that Aviva Insurance (Europe) Public Limited Company must indemnify him for losses arising from the fire.
Aviva refused cover in January 2010, saying, among other grounds, that it believed McLaughlin was responsible for setting the fire. In its defence, the insurer alleged that the claim was fraudulent and that McLaughlin or his brother, Kevin McLaughlin, may have deliberately started the fire. These are allegations in the civil proceedings; the Supreme Court judgment did not determine who caused the fire or whether the insurance claim was fraudulent.
The Commissioner sought to withhold a second DVR recorder recovered from the premises, along with forensic reports by Data Clinic Limited and Critical Processes. The judgment records that both DVRs were in issue. The High Court had rejected the privilege claim and ordered discovery within 21 days. The Commissioner appealed.
The Supreme Court held that material forming part of an ongoing Garda investigation may attract public interest privilege even if it was not originally created by the police or prosecutor. The Commissioner bore the burden of establishing the claim, and the court was satisfied that the two recorders and two reports were material to the investigation.
The court ordered that there be no discovery until the Director of Public Prosecutions decides not to prosecute, or decides to prosecute, in which case the material will be disclosed in the Book of Evidence. The ruling addresses disclosure at this stage; it does not decide the underlying civil insurance claim or the suspected criminal offence.
The court did not order that the plaintiff’s experts be allowed to observe the process of “cannibalising” the recorders. It noted concern about the possibility of evidence being destroyed and said the exclusion of the experts could create difficulties, but left that matter to the prosecutor.