Corbett v. D.P.P. [1999] IEHC 3; [1999] 2 IR 179 (13th April, 1999)

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The Applicant is charged with assault contrary to common law and section 42 of the Offences Against the Person Act 1861 by a Summons issued on the 24th of June 1997 signed by a District Court Clerk. This Summons was served in August 1997 returnable before the District Court on the 1st September and adjourned to the 11th of November of that year.

1. On the 7th of November the Applicant received a letter dated the 4th from Sergeant T. McKenna, Anglesea Street Garda Station, Cork, informing him that his case would be adjourned on the 11th, that he was not to attend and he would be notified of the new date in course.

2. Meanwhile on the 6th November Ms Mary Cashman, Clerical Officer, of Anglesea Street Garda Station contacted Ms GeorginaPhelan, the Applicant's Solicitor, and informed her that the Prosecution would be seeking an adjournment, mentioning the pending Appeal before the Supreme Court of the High Court judgment in the case of Devanney v Judge Shields and the DPP which had cast doubt inter alia on the validity of the proceedings against the Applicant, and Ms Cashman who has sworn an affidavit says that Ms Phelan did not in any way take exception to the proposed course of action or express any objection to the proposed adjournment. Ms Cashman does not say that she informed Ms Phelan on that occasion that the Gardai had contacted her client direct.

3. On the 10th of November 1997 application was made to Barr J. in the High Court for liberty to apply for judicial review against the Respondent herein on the grounds that the continuance of the prosecution was not in accordance with law after the abolition of the offence charged, was in violation of the rule of law and contrary to several specified articles of the Constitution and of the European Convention on Human Rights; secondly, on the ground that the application for the issue of the summons was not signed and issued by a person lawfully appointed; thirdly on the ground that the prosecution had been "invalidated" by reason of the conduct of the Respondent in what is described as unlawfully purporting to exercise the functions of the Courts and of the Judges appointed under the Constitution, in denying the Applicant's right of access to the Courts and creating a situation where a reasonable person would apprehend bias on the part of the Courts and the said Judges contrary to several articles of the aforementioned instruments; and finally on the ground that the Respondent had been guilty of wrongful interference with the administration of justice contrary to several articles of the aforementioned instruments.Barr J. granted the Applicant liberty to seek judicial review on the first three of those grounds but not on the fourth ground. His order, of the 10th of November 1997, put a stay on the common assault proceedings so that in the event the intended application for an adjournment on the 11th November was never actually made.

4. In his Affidavit sworn on the 8th of November 1997 grounding the initial application to Barr J. the Applicant refers to the letter dated the 4th of November 1997 and to what he describes as the attitude of the Respondent that he was not entitled even to make an application in the District Court in his case and it appears that the Respondent was satisfied that he had a predetermined decision of the Courts in the issue of how the matter should be disposed of on the date on which it had been listed for trial. He said that in fact when he received this communication he believed that the Respondent had gone to a Judge and obtained an Orderpostponing the trial without reference to his views on the matter and without his Solicitor being present.

5. On the 17th of February 1998 the Respondent filed a statement of grounds of opposition in which the application is comprehensively opposed. A week later two affidavits one of Sergeant Thomas McKenna and the other of Ms Mary Cashman were sworn. Sergeant McKenna in the course of his affidavit avers that he was aware (in November 1997) of the fact that a judicial review had been commenced before the High Court in which the provisions of the Non Fatal Offences Against the Person Act 1997 were to be considered in particular in light of the repeal by section 28 of the said Act of the common law offence faced by the Applicant. He says it was felt appropriate to let the matter to be decided in the judicial review already commenced rather than to have a series of cases stated and judicial reviews going to the High Court on the same point. He refers to a considerable degree of confusion in the District Courts in Cork and be believes throughout the State and to his instructions to make application to have such cases adjourned. He acknowledges his letter dated the 4th of November and says:-

"It was not my intention in the phrasing of that letter to indicate that I was in any way usurping or attempting to usurp the constitutional functions of the Courts as alleged on behalf of the Applicant. I perhaps should have phrased the letter differently and indicated that I would be applying to adjourn the matter. That was my intention."

6. He also refers to the fact that in the initial application no mention was made to the phone call to the Applicant's Solicitor indicating their intention to adjourn.

7. On the 23rd of March 1998, after vigorous resistance by the Respondent, on the grounds, I am informed, that the Respondent had no relevant documents, McCracken J. made an Order for Discovery of documents in relation to the two following categories:-

(b) Such instructions as were provided to Sergeant Thomas McKenna in respect of a proposed application for an adjournment in respect of the prosecution being faced by the Applicant herein prior to the forwarding to the Applicant of a letter dated the 4th day of November 1997, referred to at paragraph 7 of the Applicant's grounding affidavit.

8. By affidavit sworn on 17th April 1998 by Sergeant Thomas McKenna the Respondent purported to comply with this Order for Discovery.

1. Memorandum dated 3rd November 1997 from Superintendent John Kelly, "C" Branch, Crime Section, Garda Headquarters, for the attention of Divisional Officer together with accompanying documents.

2. Memo dated 3rd November 1997 from the Office of the Director of Public Prosecutions addressed to the Chief State Solicitor, each State Solicitor and the Garda Commission (sic) re Patrick Devanney v District Judge Shields and Ors.

3. Memorandum from Superintendent TJ Waldron, signed by Inspector Shanahan, addressed to each Inspector and each Sergeant in Charge, Anglesea Street District, Re. Prosecutions for Assault contrary to common law bearing date stamp 22nd October, 1997 accompanied by:

4. Memorandum from Chief Superintendent O'Sullivan addressed to each Divisional Officer enclosing, for their information

10. In regard to the foregoing privilege was claimed by Sergeant McKenna in the following terms set out at paragraph 5 of his affidavit of the 17th of April 1998.

5. I object to production of the said documents upon the grounds that the said documents attract legal professional privilege and/or in the alternative public interest privilege as the said documents consist of the provision of legal advice in relation to pending prosecutions and further constitute internal circulars and memoranda relating to pending prosecutions before the District Court including the prosecution of the Applicant herein and it would not be in the public interest that such matters be disclosed. In the performance of his duties prescribed by Statute pursuant to the Prosecution of Offences Act, 1974 the Director of Public Prosecutions has communicated with AnGarda Siochana and State Solicitors and the Chief State Solicitor for the purpose of ensuring that pending prosecutions are dealt with in an efficient and proper fashion. The said communications were issued with the intention that the same remain confidential and such confidential communications in their nature should remain confidential unless there is an overriding public interest in their disclosure. Further, to the extent that the said documents constitute instructions from the Office of the Director ofPublic Prosecutions, the same should remain confidential as it is important in the context of such communications that the Director of Public Prosecutions and the recipients of the said instructions have confidence in the confidential nature of the communication. It would not be in the public interest if accused persons before the Courts could, by the pursuance of an application for discovery, obtain such communications prior to their trial taking place.

11. The Applicant challenges the foregoing claims of privilege in the present application. Comprehensive submissions were made on his behalf by Dr. John White S.C. These submissions were constructed around the following propositions:-

1. legal professional privilege does not attach to documents of the nature of those referred to;

2. no facts have been deposed to which establish the existence of such alleged privilege;

3. the head of alleged privilege in respect of public interest does not exist in respect of documents of the nature in issue;

4. if such alleged public interest privilege exists it has not been competently raised in the affidavit claiming it;

5. in the case of both allegations of privilege, the same, if substantiated and otherwise applicable, do not apply where what is in issue is an alleged abuse of the process of the Court and a violation of the constitutional rights of the citizen.

12. I will deal with each of these in turn, but before doing so I will set out the general legal framework in which the Court approaches an application such as this as set out by Finlay C.J. in Ambiorix LH -v- The Minister for the Environment (No.1) (1992:1:1:R:227 at p.283):

"(1) Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in the Courts set up under the Constitution.

(2) Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and in part of the ultimate safeguard of justice in the state.

(3) Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the state, it is the judicial power which will decide which public interest shall prevail.

(4) The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interest; such as the security of the state or the efficient discharge of the functions of the executive organ of the government.

(5) It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.

These principles lead to certain practical conclusions which are applicable to a claim of privilege by the executive of the nature which arises in this case, and they are as follows:-

(a) The executive cannot prevent the judicial power from examining documents which are relevant to an issue in a civil trial for the purpose of deciding whether they must be produced.

(b) There is no obligation on the judicial power to examine any particular document before deciding that it is exempt from production, and it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis of a description of its nature and contents which it (the judicial power) accepts.

(c) There cannot, accordingly, be a generally applicable class or category of document exempted from production by reason of the role in the public service of the persons creating them, or of the position of the individual or body intended to use them."

13. I did not understand Mr McDonagh B.L. for the Respondent vigorously to argue that such privilege, strictly so called, applies. In this he is surely correct. In dealing with the question whether legal professional privilege applied strictly to communications to and from the Director of Public Prosecutions inBreathnach v Ireland (No 3) (1993 2 IR 458 at page 471) Keane J. observed:-

"As has also been recently pointed out, the privilege is that of the client and may only be waived by him. The position of the Director of Public Prosecutions is, of course, somewhat different: he does not stand in the relationship of "client" to any other lawyer. He is in a sense both lawyer and client, since he formulates the legal opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties to the subsequent litigation. However, be that as it may, the public policy which protects from discovery communications in the first category (that is communications between a client and his lawyer made for the purpose of obtaining and giving legal advice) undoubtedly applies equally to communications between the Director of Public Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated."

14. As I understand the foregoing passage, the learned Judge held that legal professional privilege did not apply to those communications referred to, but that the public policy underlying the first category of legal professional privilege (i.e. communications between a client and his lawyer made for the purpose of obtaining and giving legal advice) undoubtedly did apply to communications between the DPP and the three categories of persons mentioned.

15. It was explained to me by Counsel for the Respondent at the hearing that the legal professional privilege claim was being made only in relation to the second and fifth documents referred to in the affidavit. It was not stated that these were documents passing between the Respondent and either Solicitor or Counsel or professional officers in his Department but it was asserted that they contained legal advice.

16. Comprehensive submissions were made as to why the Court should not extend the category of legal professional privilege. I am content to rest my decision on the foregoing passage from the judgment of Keane J. in Breathnach No. 3 as I understand it. In my view the documents set out at nos. 2 and 5 in the affidavit are not protected by legal professional privilege strictly so called.

17. In light of this finding it is not necessary to consider Dr. White's second proposition to the effect that no facts were deposed to which establish the existence of legal professional privilege in this case.

18. It is clear from the foregoing, however, that in the view of Keane J. communications between the Director of Public Prosecutions and professional officers in his department, Solicitors and Counsel as to prosecutions by him which are in being or contemplated enjoy a public policy privilege which is analogous to the legal professional privilege attaching to communications between a client and his lawyer made for the purpose of obtaining and giving legal advice.

19. The question I must now consider is whether such a public policy privilege might apply to documents described at nos 2 and 5 of the Affidavit. They are said to contain legal advice. The advice is communicated from the office of the Respondent to the Chief State Solicitor and to each State Solicitor and to the Garda Commissioner in relation to the judgment of McCracken J. in the Devanney case. I consider the following extract from the judgment of Keane J. in Breathnach No. 3 (pages 472/3) to be relevant to this consideration.

"In civil proceedings, the desirability of preserving confidentiality in the case of communications between members of the Executive has been significantly eroded

as a factor proper to be taken into account by the Courts:..however, different considerations would appear to apply to communications between the Gardai and to the Director of Public Prosecutions, where the public interest in the prevention and prosecution of crime must be given due weight."

20. In the foregoing passage I consider that Keane J. was contrasting civil proceedings (where the desirability of preserving confidentiality had been eroded) on the one hand, with criminal proceedings on the other. In the latter the public interest in the preservation and prosecution of crime has to be given due weight.

21. I incline to the view that the present proceedings are closer to criminal proceedings in this context than they are to civil proceedings. I note that in his judgment in C and the DPP and Judge Flan Brennan (unreported: 28th May 1998) which was another case where an accused sought to prohibit the prosecution of his trial the same Judge considered that the Applicant was entitled to have his case considered in the light of the presumption of innocence which is a presumption relevant, of course, to a criminal trial rather than to a civil action. Furthermore it seems to me that the public interest in the prevention and prosecution of crime is the same public interest as between the Applicant and the Respondent in these proceedings as it is between the Respondent as Prosecutor and the Applicant as Accused in the criminal proceedings now soughtto be stayed. Accordingly in my view it is open in principle to the Respondent to claim that a public policy privilege being the public interest in the prevention and prosecution of crime, can apply to the documents not only at nos. 2 and 5 in the affidavit but to the others as well.

22. In the present case I have quoted extensively the ground upon which this public policy privilege is claimed.

23. Dr White says that this public interest privilege has not been competently raised in the affidavit. In my view taking together the description of the documents (comprising memoranda passing between different ranks of the Gardai and the State Solicitors and the Respondent) together with the ground claimed for privilege it is reasonable to conclude that the public interest in promoting the freedom of communication between the Gardai and the Respondent (as identified in the observations of Keane J. referred to in the foregoing passage, and I would add between the Respondent and State Solicitors in connection with the prosecution of offences) has been competently raised as an aspect of public policy in the present proceedings.

24. I would consider that the public does have an interest in ensuring that there is free communication between these parties and that it is right that the Courts should bear in mind the possibility that such freedom might be inhibited by a knowledge that the documents may subsequently be disclosed in Court proceedings. On the other side as Dr White points out no one could assume as a matter of absolute certainty that such documents would never see the light of day which they certainly would in the event of an enquiry into allegations of corruption or maladministration in the relevant department.

25. Having come to the conclusion that an aspect of public policy comprises the desirability of freedom of communication between the parties involved in the documents in dispute in this application, I have also therefore concluded that this claim to privilege has been competently raised because I consider that it follows as a matter of common sense that once the category of documents is identified as comprising documents passing between the Respondent, the Police and the relevant Solicitors in the context of prosecuting offences there is clearly a public interestin ensuring the freedom of communication between these parties so that the making of the claim to privilege is itself virtually to establish the ground upon which that claim is made in relation to that category of document.

26. This is not to say, of course, that the claim to privilege automatically succeeds. Once a prima facie claim has been established, as I have held it has, then I consider the Court should proceed to inspect the documents to ascertain whether in the particular circumstances they should, notwithstanding the prima facie claim be disclosed to the Applicant.

27. In this context I have borne in mind that the case being made is that the prosecution wanted, for reasons of tactical advantage to itself, to procure an adjournment of its case against the Applicant. Any material, therefore, which would assist the Applicant in showing that adjournments were to the advantage of the prosecution or which would lead the Applicant on a trail of inquiry which might, on a reasonable basis, assist his case would constitute documents which should be discovered to the Applicant unless the Applicant's interest in procuring same was counter balanced by the aspect of public policy relating to free communication to which I have already referred.

28. Having reached the foregoing conclusions I considered the documents at issue in the present case. The following are my conclusions.

29. Document 1. ' This is the memorandum from Superintendent John Kelly enclosing the memorandum at no 2. This document is entirely innocuous but is conceivably relevant to the Applicant's case as and identified in the foregoing and I direct production of this document.

30. Document 2. This is the memorandum dated the 3rd November 1997 from a Legal Assistant in the Office of the Director of Public Prosecutions to the Chief State Solicitor and each Chief Solicitor and the Garda Commissioner. This document contains legal advice. As such there is a close analogy to legal professional privilege. Balancing the public interest identified above with the countervailing interest of the public to ensure that all relevant material isbefore the Court I consider that paragraphs 7, 8 and 11 only of this document should be disclosed.

31. Document 3. This is a memorandum dated the 22nd October 1997. It comprises five paragraphs three of which are numbered. I consider that nos. 2 and 3 should be disclosed for reasons similar to those at no. 2 above.

32. Document 4. This is a memorandum addressed to each divisional officer. It is difficult to see that it is relevant: it is entirely innocuous. On balance however I consider it should be disclosed.

33. Document 5. This is a memorandum from the office of the Respondent dated the 9th October 1997. It contains legal advice. In my view the bulk is privileged on public policy grounds but the last paragraph should be disclosed together with the letter heading, addressee, date and reference caption at the head of the letter.

34. I am not satisfied that the Applicant has established as a matter of probability that there was anything approaching an intentional or deliberate wrongful interference with the processes of the Courts. There may well have been a lack of awareness on the part of theGardai that the Applicant once represented should not have been communicated with direct, and even, as Sergeant McKenna admits, an infelicitous phrasing of his letter to the Applicant. In light, however, of the telephone communication between the Gardai and the Applicant's Solicitor, I am satisfied that any claim of interference with the Applicant's constitutional rights or with the due process of the Courts is close to the innocuous end of the scale if it is to succeed at all. Furthermore even if I were persuaded that the Applicant has at this stage established a "viable and plausible" case in this regard (as indicated byFinlay CJ in Murphy v Kirwan (1993 3 IR 501 at page 512) I would not, on that account, have directed production of more of the documents than I have already done because I have ordered production the portions of the documents which bear on the matter of the adjournment.

35. Accordingly an Order will be made directing production of the documents and portions of the documents indicated in the foregoing judgment.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Corbett v. D.P.P. [1999] IEHC 3; [1999] 2 IR 179 (13th April, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/3.html Cite as: [1999] 2 IR 179, [1999] IEHC 3

High Court of Ireland Decisions

Corbett v. D.P.P. [1999] IEHC 3; [1999] 2 IR 179 (13th April, 1999)