The High Court has allowed Noel O’Connor’s legal representatives to transmit documents discovered in his Irish civil proceedings to the City of Westminster Magistrates’ Court for use in the proceedings concerning a European Arrest Warrant issued by France. The documents may be sent only as the lawyers consider necessary and remain subject to any further directions made by the English court.
In a judgment delivered on 27 April 2018, Ms Justice Baker modified the implied undertaking that restricts the use of documents obtained through discovery. She found special circumstances justified the change and said the application was neither unnecessary nor premature. The order did not decide whether the warrant should be executed or whether surrender to France would amount to an abuse of process.
O’Connor’s Irish action seeks damages from the Commissioner of An Garda Síochána, Ireland and the Attorney General. He alleges that, after agreeing in July 1999 to act as an informant about suspected drug trafficking, he was promised protection of his safety and identity and protection from prosecution in Ireland or abroad. The defendants admit that he acted as an informant and received payments for information, but dispute that an agreement protected him from prosecution outside Ireland. They also deny giving any guarantee about the terms of his release from French custody.
O’Connor was detained in France in August 2000 and released in November that year following a commission involving the French and Irish authorities. He was later tried in his absence, convicted of drug trafficking offences and sentenced to imprisonment. He has not served that sentence. He was arrested in England and Wales in January 2018 under a French warrant issued on 3 January 2008. His extradition hearing was listed for 25 June 2018.
The defendants argued that the application was premature because the English court could first consider O’Connor’s arguments on assumed facts, and seek further information from the French issuing authority if needed. Justice Baker said she could not safely assume the English court would reach that later stage or obtain the Irish documents through the warrant process. She considered it important to make the material available early so the English court could manage the case as it saw fit, given the liberty issues involved.
The defendants also raised concerns about the sensitive nature of documents from government departments, An Garda Síochána and private consular communications. The judge directed that the documents be transmitted to the English court, rather than released directly to O’Connor’s English lawyers. The English court could then decide how they might be disseminated and what safeguards or undertakings were appropriate.
The order modified the undertaking only for documents listed in the schedule to the notice of motion dated 5 March 2018. It permitted the plaintiff’s legal representatives to send such of those documents as they considered necessary to Westminster Magistrates’ Court, subject to that court’s further directions.