Compelling Documents

Garda Application

An application may be made to the District Court by a member of Garda Siochana for orders requiring the production of documents or the provision of information for the purpose of the investigation of a relevant offence. The Garda may apply for an order in relation to making available documents or the provision of information by answering questions or making a statement or both.

Orders may be made in relation to the production of documents or giving of access to them.  Orders may relate to the provision of information by answering questions specified in the application or making a statement setting out answers or making a declaration of truth in relation to them.

In either of the above cases, the District Court must be satisfied on information on oath by a Garda that there are reasonable grounds for believing that the document or information is relevant to the investigation of a relevant offence.  There must be reasonable grounds for suspecting that the document or information may constitute evidence of or relation to the commission of the offence,  there are reasonable grounds for believing that the documents or information should be provided having regard to the likely benefit to accrue to the investigation and any other relevant circumstances.

Order to Discover

The person the subject of the order may be ordered to identify and categorise documents in the manner sought by the Gardi or as directed by the court. An order to provide information may only be made in respect of information the person concerned has obtained in the ordinary course of business.

An order providing for access to documents in a specified place may require the Gardai to be allowed access to passwords and access to computers etc. A member of an Garda Siochana may o make copies and take them away.  This does not apply to documents that are subject to legal professional privilege.  However, the order may take effect notwithstanding any other obligation as the secrecy or other restriction on disclosure of information imposed by statute.

Retention of Documents

In certain circumstances, it is provided for the retention by or the return to a person of documents which may be taken away by the Garda Siochana where documents are required for the purpose of a person’s business or another legitimate purpose.

The persons must undertake in writing to keep them safely and securely and when requested to furnish them to the Garda Siochana in connection with any criminal proceedings for which they are required.  This also applies to third parties affected by an order made under the above provisions.

Documents removed by a member of an Garda Siochana may be retained as evidence in any criminal proceedings.  Statement or admissions made are not admissible as evidence against the person for an offence, other than the offences below.

Issues with Documents

An order under the provision where the production access to etc. of documents may on the application of the Garda Siochana if the judge considers appropriate, require a person to furnish a certificate affirming the authenticity of documents and in the case of documents in a non-legible form that it is to be produced in a legible form, the system and manner of that reproduction.

Where a person who produces documents claims a lien on the documents or some of them, the production is to be without prejudice to the lien.

The court may vary, or discharge orders made, an application by a person the subject of the order or an Garda Siochana.  The court may order the return of documents to the third parties affected.

A person who fails to comply with the terms of an order is guilty of an offence.  It is an offence to provide false or misleading information.  Persons who fail to comply with an undertaking given above are guilty of an offence.  The statement or admission made is admissible only as evidence in relation to the offences in relation to non-compliance with the order, but not for other offences including the offences being investigated.

Claim of Privilege

There is provision for determining legal professional privilege issues arising in relation to District Court orders above requiring disclosure of documents to Garda Siochana.  Privileged legal material is defined.  If a person refuses to disclose a document or give access to it pursuant to order on the grounds that it is privilege legal material, a member of an Garda Siochana may apply to the District Court for a determination as to whether it is so.

A person who refuses to disclose a document or to give access pursuant to an order on the grounds that it is privileged legal material may apply to the District Court for a determination as to whether it is professional privilege legal material. There is an obligation on a person who refuses to produce a document or to give access to it on the grounds that it is privilege legal material, to preserve the document and keep it safe and secure pending determination of the application.

The District Court pending final determination may give interlocutory directions including where the case involves a substantial volume of documents, the appointment of an experienced independent person with legal qualification to examine the document and prepare or report for the judge with a view to assisting or facilitating the judge to determine as to whether the documents are privileged legal material.

The District Court may direct the application to be heard other than in public. There is an appeal against the determination of the District judge to the Circuit Court without further appeal. It is an offence to falsify, conceal or destroy documents relevant to a Garda investigation into a relevant offence.

Evidential Presumptions

Certain evidential presumptions apply provided for where documents are admitted as evidence and proceedings for a relevant offence.  There are presumptions in relation to the creation ownership receipt and other matters relating to documents.

Where a document purports to have been created by a person in circumstances in which it is reasonable to presume that it was created by that person it shall be presumed, unless the contrary is shown, that the document was created by that person and, in those circumstances, that any statement contained therein, unless the document expressly or by implication attributes its making to some other person, was made by that person.

Where a document purports to have been created by a person in circumstances in which it is reasonable to presume that it was created by that person, and addressed and sent to a second person in circumstances in which it is reasonable to presume that it was so addressed and sent by the first person, it shall be presumed, unless the contrary is shown, that the document was created and sent by the first person and received by the second person and that any statement contained therein unless the document expressly or by implication attributes its making to some other person, was made by the first person, and came to the notice of the second person.

Where a document is found in any place that is occupied by any person for the purposes of a trade, profession or other activity that is carried on by that person in circumstances in which it is reasonable to presume that the document is the property of that person, then, in any proceedings for a relevant offence, the document shall be presumed, unless the contrary is shown, to be the property of that person.

Where a trade, profession or other activity is carried on by any person at a particular place, a document that is found at that place in circumstances in which it is reasonable to presume that the document relates to that trade, profession or, as the case may be, other activity carried on by that person shall, in any proceedings for a relevant offence, be presumed, unless the contrary is shown, to be a document which relates to that trade, profession or, as the case may be, other activity, carried on by that person.