The Court of Appeal has dismissed three appeals by the Garda Commissioner over High Court orders concerning recordings held by gardaí during a criminal investigation linked to family-law proceedings about children’s custody and access.
In a judgment delivered on 26 April 2024, Mr Justice Allen, with whom Ms Justice Collins and Mr Justice Whelan agreed, held that material gathered in a Garda investigation is not absolutely immune from disclosure for the duration of that investigation. Courts retain jurisdiction to weigh the public interest in protecting an investigation against the public interest in the administration of justice.
The case arose after the parents’ relationship broke down in 2020. The mother gave recordings to gardaí, who copied them from her phone. The Commissioner later said he held 29 audio and video recordings relevant to a criminal investigation into alleged assault against the children and alleged coercive control against the mother. Those were allegations described in the judgment, not findings in these appeals.
The High Court inspected the recordings and ordered their disclosure to both parents, finding them relevant to questions concerning the children’s safety and welfare. The family-law proceedings were later settled, and the disclosure orders were vacated. The Commissioner nevertheless pursued appeals raising issues he said remained important beyond the parties’ case.
The Court of Appeal said the dispute was not whether the recordings attracted public-interest investigative privilege. That privilege was accepted. The question was whether it prevented a court from considering disclosure. Mr Justice Allen concluded it did not, rejecting the Commissioner’s argument that Garda investigation material could not be disclosed until a decision was made not to prosecute or, if prosecution followed, until a book of evidence was served.
The judgment said the weight given to investigative privilege may vary with the circumstances. The nature of the civil proceedings and the consequences of delay can matter in balancing competing public interests; the balance is not fixed simply because an investigation remains open. The court also said the High Court had been entitled to take account of the serious issues raised about the children’s safety and welfare.
The court dismissed appeals 2021 54, 2022 63 and 2022 84. Unless the parties notify the court within ten days of an issue about costs or the precise form of the order, the Commissioner is to pay the respondent father’s costs. The judgment did not revive the vacated disclosure orders or determine the underlying family-law or criminal allegations.