High Court: Garda informant granted application to use sensitive documents in challenging his surrender under EAW

About this case:

• Judgment:
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Discovery of the documents had been granted in a case brought by the informant against the State, and he sought permission to modify the implied undertaking that the documents be used other than for the purposes of that litigation.

Granting the application, Ms Justice Baker was satisfied that there were special circumstances to justify making an order for the documents to be released to the English Courts hearing the man’s challenge to his surrender.

Application to be released from implied undertaking

The informant sought to be released from the implied undertaking and/or that that undertaking be modified in regard to the use of documents discovered in the course of the proceedings, some of which were the subject of O’Connor v. Commissioner of An Garda Síochána (No. 1) IEHC 634, following a claim by the defendants of public interest privilege over certain of those documents.

The implied undertaking is that the documents not be used other than for the purposes of the litigation concerned (Cork Plastics (Manufacturing) v. Ineos Compounds UK Ltd IEHC 247, 1 IR 492).

Special circumstances

The Court, in the exercise of its inherent jurisdiction, may grant permission for the use of such documents in “special circumstances” (as explained in Roussel v Farchepro Ltd 3 IR 567, in which Kelly J expressly approved the House of Lords judgment in Crest Homes Plc v Marks 1 AC 829).

Justice Baker considered the two-part test established herein:

Justice Baker said that the relevant factors applicable to the second limb of the test were:

It was submitted on behalf of the informant that the subsequent prosecution after the promise of immunity from prosecution could be an abuse of court process; and that the documents sought maybe be useful in assisting the argument that the execution of the European Arrest Warrant could be unfair and an abuse of process.

Rejecting the State defendants’ approach that the application was either premature or unnecessary, Justice Baker said that the Court must facilitate the informants’ argument before the English Court at the earliest possible stage of the process due the fact that his fundamental rights of freedom and liberty were at issue. Furthermore, it was not for the Court to guess how the English Court would approach the matter, therefore it was appropriate to make the material available at the earliest opportunity so to enable the English Court to determine the matter in whatever means and sequence it chooses.

Considering the joint cases of Aranyosi and Caldararu, Case C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198; Justice Baker said it was not clear whether the executing judicial authority could seek information from a third Member State. As such it was not clear whether the French Judicial authorities would be obligated to seek assistance/documentation from Ireland, or indeed whether the English Court could require the assistance of the Irish Authorities.

Justice Baker agreed that the EAW must be considered in a matter compatible which fundamental rights provisions, however she was not satisfied that it was safe for her to assume that the French authorities will have all of the relevant documentation.

Justice Baker said that it was necessary to take a cautious approach to the interpretation of the current jurisprudent regarding EAW procedure, and that the correct approach was to not infer that the English Court would have a right to seek information form Irish Authorities.

Justice Baker considered it “practical and correct in principle” to release the documents to the English Court, which would afford sufficient protection for the confidential and sensitive nature of the documents, and to restrict the use to which the sensitive documents may be put.

Justice Baker said that special circumstances existed “to justify the modification in the manner proposed, that the interest of justice require that the undertaking be modified”.

Considering the above, Justice Baker proposed the following order:

“An order modifying the implied undertaking of the plaintiff and his legal representatives attaching to those documents discovered in the affidavits of discovery sworn on behalf of the defendants in the present proceedings as are set out in the schedule to a notice of motion dated 5 March 2018, and returnable to before the High Court on 27 March 2018, by permitting the legal representatives of the plaintiff to transmit such of those documents as they consider necessary to the City of Westminster Magistrates’ Court and subject to such further directions by that Court in the proceedings commenced against the plaintiff as respondent to an application by the French authorities for the execution of a European Arrest Warrant issued against him on 3 January 2008.”