Court of Appeal: Businessman loses appeal for discovery of information grounding search warrant

About this case:

• Judgment:
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The man had been refused an order for discovery of the relevant information in the High Court as he was not entitled to such, and the Court of Appeal upheld this refusal adding that there were asserted claims of public interest privilege and informer privilege which would have applied even if there was an entitlement.

High Court

business premises belonging to Mr Francis McGuinness at Pinnock Hill, Swords, Co Dublin were searched by members of An Garda Siochána on foot of a search warrant in August 2014.

In October 2016, in the High Court, Justice Keane refused the following reliefs sought by Mr McGuinness:

Court of Appeal

Counsel for Mr McGuinness were given leave to argue “a single net point”, namely that the judge’s ruling had been premature.

Counsel for Mr McGuinness did not dispute that the High Court judge had followed a procedure that is well established in law in deciding to approach the matter in two stages, and in deciding to view the contentious document before ruling on the issues of both public interest privilege and informer privilege.

Counsel contended that ‘the judge had been premature in embarking on that process. He submitted that there may have been a digital audio recording (DAR) potentially available to assist the High Court judge, which the judge did not bespeak or consult.It is presumed that this was an allusion to a possible digital audio recording of the hearing before the District Judge at which the warrant was applied for. Moreover, it is by no means clear what any digital audio record might have added that was not contained in the sworn information that was available to be viewed by the judge, as he proposed to do, and in fact proceeded to do’.

This suggestion prompted an intervention from the bench pointing out to him that the proceedings before the High Court were adversarial and it was incumbent on the moving party to put before the court all evidence on which he intended to rely, and it was not for the High Court judge to go off and do his own investigation.

Counsel’s response to this intervention was to say that he agreed with the court but that “if there was DAR that could have been put before the court, and should have been put before the court, and wasn’t, then that did not assist the court”.

Justice Edwards said that there was no application made to the High Court judge or to the District Court judge for access to any DAR recording or to have a transcript provided of any DAR recording.

No evidence had been adduced it existed, and there may not have been recording if the application was heard in chambers rather than in open court.

Although counsel for Mr McGuinness originally contended that he was relying on a single net point, Justice Edwards noted that Counsel ‘in fact sought to advance a further ground, or quasi ground, namely that in the light of Fennelly J’s remarks in Creaven & Ors v. Criminal Assets Bureau & Ors… deploring the refusal of the relevant respondent in that case to provide the applicants with copies of the essential documents which had been used to ground the applications for the warrants, the High Court judge had erred in failing to regard the defendants as displaying what he described as “the same mentality”, and counsel appeared to be suggesting that this was a circumstance which the High Court judge should have taken into account, but failed to take into account, in deciding on whether or not to uphold the claims of privilege being asserted’.

Justice Edwards stated that he had ‘no hesitation in rejecting in rejecting any such complaint in circumstances where the Creaven case was not concerned in any way with a claim of privilege, be it public interest privilege, or informer privilege’.

Counsel for the defendants contended that, considering O’Brien v. Red Flag Consulting Limited IECA 258, the High Court judge’s order should be upheld because the most critical matter that must be demonstrated by any applicant for discovery was relevance, and Mr McGuinness had failed to establish the relevance of the sworn information that he was seeking discovery of to the claim he was advancing in his Statement of Claim.

Delivering the judgment of the three-judge Court, Justice Edwards said that he was satisfied that Mr McGuinness ‘failed to demonstrate any infirmity in the High Court judge’s decision’.

Mr McGuinness failed to demonstrate the relevance of the document in respect of which he sought discovery, moreover, even if Mr McGuinness had been entitled in principle to discovery of the document at issue, there were asserted claims of public interest privilege and informer privilege, which the High Court judge had been disposed to uphold, following a viewing of the document in accordance with established and proper procedure.

Dismissing the appeal, Justice Edwards stated that he had heard nothing to persuade him that the High Court Judge erred in any way.