High Court: Man not entitled to Garda search warrant information due to informer privilege

About this case:

• Judgment:
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The warrant

On 23rd August 2014, members of An Garda Síochána conducted a search of premises belonging to Mr Francis McGuinness under a warrant issued by the District Court pursuant to the terms of s. 10 of the Criminal Justice (Miscellaneous Provisions) Act, as substituted by s. 6 of the Criminal Justice Act 2006.

Mr McGuinness sought an interlocutory order compelling the Commissioner of An Garda Síochána to furnish him with a copy of sworn information regarding a warrant to search Mr McGuinness’s premises at Hillcrest, Cloghran, County Dublin.

The relevant warrant recited that “as a result of hearing the evidence on oath of Sergeant James P. Fraher of Cavan Garda Station, the District Judge was satisfied that there were reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence” was to be found at Mr McGuinness’s premises.

Mr McGuinness’s application was brought against members of An Garda Síochána for damages for negligence; misfeasance in public office; trespass; conversion and detinue; and breach of his constitutional rights, together with certain injunctive reliefs, arising from the search of his premises, and the seizure from them of certain property on the 23rd August 2014

Justice Keane stated that an “unusual feature” of the case was that the sworn information at issue either directly identified an informer or informers or included such facts as would permit the identification of the confidential informant(s) concerned on a circumstantial or ‘jigsaw’ basis.

In opposition to Mr McGuinness’s application, the State defendants asserted a claim of privilege against the inspection of that document, either in whole or in significant part, as covered by informant privilege or the public interest privilege associated with the investigation of crime, or both.

In a judgment given on 7th October 2016, Mr Justice David Keane determined to examine the text of the sworn information at issue in order to identify and weigh the competing interests in compelling or withholding its production.

Informer privilege

On 28th October 2016, after examining the text of the sworn information, Justice Keane stated that he was satisfied that the document concerned was material to an ongoing criminal investigation. In considering the evidence the Court had to bear in mind the obligation to decide which interest should prevail where a conflict arises between the public interest in the production of evidence and the investigation of crime and the protection of informants

Justice Keane had concerns with “the risk that the range and detail of the information contained in the document at issue could result in the identification of a confidential informant or informants”.

Accordingly, Justice Keane was satisfied that “both public interest privilege and informant privilege were properly invoked” in the circumstances.

After considering “redaction of the document to disclose so much of it as does not give rise to the risk that an informant or informants may be identified thereby”, Justice Keane decided against redaction for two reasons:

The Court only had limited information available to it that might enable it to assess risk in context, and the risk invoked in this case was not merely the potential compromise of an ongoing criminal investigation but also a potential risk to the life of an informant (or informants).

Accordingly, Mr Justice Keane refused Mr McGuinness’s application.