Non-party disclosure

This is mostly for the information of legal professionals, who may be representing a person who is being prosecuted by the Garda Síochána, where there is a link between that prosecution and an incident about which the person has complained to GSOC.

The Prosecution has a duty in law to disclose to the Accused any relevant material (as defined in the DPP’s ‘Guidelines for Prosecutors’) in its possession or procurement, and over which the relevant investigative agency is not asserting privilege, whether or not the Prosecution intends to rely on the evidence. The Prosecution bears the responsibility for disclosure to the Accused/the Defence of all relevant material within its possession or procurement. The Prosecution must disclose material that may harm and help the Defence. The final decision about what must be disclosed lies with the court and not the Prosecution. Further information on disclosure is available at Chapter 9 of the DPP’s ‘Guidelines for Prosecutors’ at www.dppireland.ie.

Non-parties, such as the Garda Síochána Ombudsman Commission (“GSOC”) in a case investigated by the gardaí, have no standing to argue disclosure before the trial court and are not represented in the trial procedure. Nevertheless, the issue of what to do about relevant material in the possession or procurement of a non-party arises frequently. If relevant material exists which the Defence is not allowed to see, a fair trial cannot take place and the courts will stop the prosecution. Having regard to GSOC’s statutory objectives of fairness to all and of public confidence, GSOC has – following discussions with the DPP – developed a protocol for non-party disclosure.

In practice, both GSOC and the Gardaí may conduct an investigation into the same, or a related, set of circumstances. Cases can arise where GSOC carries out an investigation and has not submitted a file to the DPP but it holds material that is potentially relevant to a prosecution commenced in the name of the DPP on foot of a Garda investigation. In late 2012 GSOC and the Office of the DPP signed a protocol to deal with non-party disclosure in such cases.  This was revised in 2019 and a new protocol was signed in June 2019. Some documents, for example witness statements of the accused and relevant medical records will be passed directly to the defence.

In cases, as described at Part 3 above, when notified in accordance with Part 5, below, GSOC uses its best endeavours to disclose material within its possession or procurement that is potentially relevant to a trial.

For much of this material, non-party disclosure will be effected via the Office of the DPP as it is a matter, in the first instance, for the DPP to determine its relevance (subject to the adjudication of the court where the Defence disputes the DPP’s view). However non-party disclosure of certain material can be effected directly to the Defence (this is explained in greater detail at Part 6b, below).

GSOC will engage in non-party disclosure when it receives a request in writing whether from the Defence and/or the DPP. In the case of a written request from the Defence for non-party disclosure:

a. If received from a solicitor on behalf of the Accused, GSOC requires:

i. The name, address and date of birth of the Accused;
ii. The date and location of the matter that is the subject of the prosecution;
iii. A list of the charges before the court (e.g. assault contrary to section 2 of the Non Fatal Offences Against the Person Act, 1997);
iv. When the matter is listed for trial (not mention-only dates);
v. The name of the prosecuting solicitor / Garda; and
vi. The name, address and contact details of the solicitor representing the Accused.

b. If received directly from the Accused GSOC requires:

i. Proof of identity of the Accused – e.g. a photocopy of a driver’s licence or a photocopy of a public services card (please do not send originals);
ii. The name, address and date of birth of the Accused;
iii. The date and location of the matter that is the subject of the prosecution;
iv. A list of the charges before the court (e.g. assault contrary to section 2 of the Non Fatal Offences Against the Person Act, 1997) or photocopies of the summonses (please do not send GSOC originals);
v. The name of the prosecuting solicitor or Garda (if known) and
vi. When the matter is listed for trial (not mention-only dates).

Please note: the preparation of materials by GSOC for non-party disclosure can take a considerable amount of time – therefore we require all of the information listed at 5a) or 5b) to be provided to GSOC at least four weeks in advance of the trial. In the absence of the information required and adherence to this notice period, GSOC can give no guarantees that material will be forwarded to the DPP/Defence, as appropriate, in advance of the trial. Requests should be sent to the following address:

Non-party Disclosure Request, Garda Síochána Ombudsman Commission, 150, Upper Abbey Street, Dublin 1.

Where a written request for non-party disclosure, in line with Part 5 above, is received GSOC undertakes a review of its file in order to identify:

a. Evidence/material gathered as a result of its investigation that, if relevant, GSOC has no issue with its disclosure to the Defence: As it is a matter, in the first instance, for the DPP to determine its relevance (subject to the adjudication of the court where the defence disputes the DPP’s view), this evidence/material is passed to the DPP. The DPP has acknowledged that any such evidence/material is passed for the purpose of disclosure to the Defence and not for use by the Prosecution – nor will this evidence/material be passed to the prosecution team or to the prosecuting Garda. This is without prejudice to the right of GSOC to transmit evidence/material to the DPP as per the terms of Part 7, below. Where this evidence/material is of a nature as could prompt the DPP to reconsider the merit in pursuing a prosecution, GSOC recognises that fairness and the promotion of confidence in the criminal justice system would also justify its use for that purpose. GSOC will advise the Accused that evidence/material has been passed to the Office of the DPP for that office to consider for non-party disclosure to the Defence.

b. Evidence/material furnished by or on behalf of the complainant and which, GSOC believes, gives rise to issues of complainant confidentiality (e.g. the complainant’s own statement or his/her medical records): Items of this nature are passed directly to the Defence and are not transmitted to the DPP. Having regard to the terms of section 6(2) of the Prosecution of Offenders Act, 1974, the Defence is entitled (should they so wish) to forward this evidence/material to the DPP for the purpose of influencing the making of a decision by the DPP to withdraw a prosecution, or any particular charge, against them in criminal proceedings.

GSOC recognises that cases could arise where this scheme engages and, on the facts of an individual case, the harm in not transmitting evidence/material to the DPP for the assistance of the Prosecution would greatly outweigh the potential detriment to the interests of the Accused and/or the independence of GSOC. In that regard GSOC has the statutory power to provide evidence/material as appropriate to the DPP. In such cases consideration will be given, inter alia, to the need to ensure the fair administration of justice, the seriousness of the charges alleged against the Accused as well as GSOC’s objectives of fairness and the promotion of public confidence. Each case will be dealt with by GSOC on its individual merits.

This scheme for non-party disclosure is subject to periodic review. This information is for guidance purposes only.