“Necessary in the Interests of Justice”: Supreme Court sets the framework for non‑party access to court audio records, notice to victims, and limits on dissemination — Smith v DPP (30 October 2025)

Introduction

This Supreme Court judgment addresses, for the first time at apex level, a coherent framework for applications by non-parties to obtain access to Digital Audio Recordings (DAR) or transcripts drawn from the DAR of court proceedings. It resolves three interlocking questions:

• What threshold must an applicant satisfy before a court will order access to the DAR?
• Who must (and who should) be put on notice of such applications, particularly in criminal cases where victims have testified?
• What restrictions or undertakings may properly be imposed on the use and dissemination of DAR material once released?

The appeal arose from a non-party’s application for transcripts of testimony given by three witnesses in a criminal trial concerning violent disorder at a Roscommon property. The applicant (Mr Smith) was not a party to that criminal case. He sought the material to deploy in separate, ongoing civil injunction proceedings regarding a different property in Balbriggan. The Circuit Court granted limited access to portions of one witness’s evidence, subject to a non-dissemination undertaking. Mr Smith appealed to the High Court seeking fuller access and release from the undertaking. The High Court dismissed for want of jurisdiction. The Supreme Court granted leave to determine:

• whether the Circuit Court’s DAR order was civil or criminal in nature for appellate purposes;
• the proper approach to access applications under Order 67A (Circuit Court), Order 123 (Superior Courts), and Order 12B (District Court), including the threshold and notification requirements; and
• what restrictions may be imposed on any DAR material provided.

The Attorney General participated as amicus-type intervenor. The Court also explored the implications of victims’ rights when non-party access is sought to their evidence.

Summary of the Judgment

• Civil status of DAR access orders: An application for access to a DAR is a separate, civil matter. The High Court had jurisdiction to hear the appeal; it was wrong to dismiss for want of jurisdiction.
• No right of access; necessity test governs: Access to DAR material is not automatic and is not an entitlement. It may only be ordered where it is necessary in the interests of justice, demonstrated by affidavit evidence.
• General principles codified: The Court distilled and adopted a set of general principles (12 in all) governing DAR access, including that legitimate purposes connected with the administration of justice will generally support access, and improper purposes will not.
• Open justice ≠ automatic access to DAR: The constitutional imperative that justice be administered in public does not create a general public or non-party entitlement to DARs. Control of access and dissemination is an aspect of the courts’ inherent and statutory power to regulate their own processes.
• Notice requirements: Parties to the recorded proceedings must be notified (including accused persons in criminal cases). Courts may dismiss in limine without broader notification if the application is plainly deficient. Discretionary notice may be required for others with a sufficient interest or who may be affected.
• Victims’ notification: In criminal cases, where a non-party seeks the DAR of a victim’s testimony (or closely related testimony), the Court held that, absent special reason to the contrary and where a prima facie case for access is shown, the victim should generally be notified and afforded an opportunity to be heard.
• Restrictions and undertakings: Courts may and often should restrain publication/dissemination, require undertakings, and tailor terms to protect the administration of justice, ongoing or future proceedings, and victim dignity/privacy.
• Audio vs transcript: The default is provision of a transcript. Audio should be ordered only where necessary (e.g., urgency or features uniquely present on the audio), with safeguards to avoid inadvertent disclosure of privileged or sensitive material.
• Application to the facts: Mr Smith provided minimal evidence and failed to demonstrate relevance and necessity. No further access should have been granted; even the limited transcript earlier released should not have been ordered on the materials provided.
• Orders made: Appeal allowed as to jurisdiction; on the merits, further access refused and the Circuit Court’s restrictive order affirmed. The witness who was a victim must be provided with the transcript portion that had been released to Mr Smith and be informed of the context of its release.

Analysis

1) Procedural Background and Issues on Appeal

The applicant, a defendant in ongoing civil injunction proceedings concerning a Balbriggan property, sought DAR materials from a separate criminal trial in Dublin Circuit Court arising from a violent incident at a Roscommon property in 2018. He alleged inconsistencies between affidavits sworn by three witnesses in the civil case and their oral testimony in the criminal trial. The Circuit Court granted partial access (extracts relating to one witness’s limited reference to Balbriggan), on strict undertakings not to disseminate. The High Court dismissed the appeal for lack of jurisdiction, treating the order as criminal in nature. The Supreme Court granted leave to address jurisdictional character, the DAR access framework (threshold and notice), and permissible use restrictions.

2) Precedents Cited and Their Influence

• Student Transport Scheme Ltd v Minister for Education and Skills [2024] IESC 37: The Supreme Court expressed a general willingness to facilitate access to transcripts for legitimate purposes connected with the administration of justice, subject to counter-arguments and the necessity requirement. However, the Court refused access in that case due to improper purpose. This decision anchors the “legitimate purpose/administration of justice” touchstone.
• Governor & Company of Bank of Ireland v Gormley [2020] IECA 102: Clarifies there is no right to DAR access, even for parties; an applicant must provide reasons and evidence of necessity. Reinforces judicial discretion and the need for material linkage to issues at hand.
• Knowles v Governor of Limerick Prison [2016] IEHC 33: Demonstrates the court’s own power to obtain DAR material where necessary (Art. 40 inquiry), underscoring necessity as the decisive criterion.
• Hudson v Judge Halpin [2013] IEHC 4: One of the earliest substantive treatments of DAR access. Identifies necessity where resolving what occurred in another court is central to fair resolution. Notes cost and administrative burdens; access was treated as exceptional in that context.
• Allied Irish Banks plc v Tracey [2013] 3 IR 398: Concerns non-party access to affidavits opened in court, drawing on open justice and the right to a good name. Distinguished in this judgment as dealing with affidavits (not DAR) and predating current Rules; now read alongside the Court’s control of records.
• Ryanair plc v Aer Rianta CPT [2003] 4 IR 264: Discovery “necessity” is additional to relevance and not an “absolute necessity”; used to caution against equating discovery standards with DAR access. DAR necessity is assessed distinctly and stringently by reference to the interests of justice.
• Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2019] 1 IR 745: Addresses privilege in witness statements; used by the applicant to analogise “open court = public.” The Supreme Court here explains that control of DAR as a court record is different; open justice does not create an automatic right to DAR access.
• Beatty v The Military Judge [2021] IECA 69: Confirms court control of records under s.65 of the Courts Officers Act 1926, and that access must be tied to the specific issues and necessity, not just general litigation challenge.
• GSOC v Board of Management of Wilson’s Hospital [2024] IECA 86: Exemplifies access for statutory bodies for legitimate criminal-investigative purposes and notes proportionality duties under the Data Protection Act 2018. Affirms that the courts control DAR access.
• Cases refusing access: RMcG v SMcG [2015] IEHC 491; Long v Bord Bia [2017] IECA 5; Gaultier v Revenue Commissioners [2020] IECA 88; Somers v Kennedy [2023] IECA 149 — highlight the courts’ insistence on a properly evidenced necessity, and their readiness to refuse where purpose is misconceived or insufficiently particularised.
• Irish Times v Ireland [1998] 1 IR 359: Open justice foundations; but as this judgment explains, open justice coexists with judicial control over records to protect the administration of justice.
• BPSG Ltd v The Courts Service [2017] 2 IR 343 and Minister for Justice v Information Commissioner [2001] 3 IR 43: Confirm statutory and inherent court control of records; DARs are court-created records and not subject to general freedom-of-information style access.
• Kavanagh v The Caretaker Government of Ireland [2020] IEHC 220: On notification under Order 123 in unusual ex parte settings. Supports a purposive approach to who must be served.
• Mohan v Ireland [2019] IESC 18: Elucidates “sufficient interest” concepts (adverse effect or imminent adverse effect) that inform who should be put on notice.
• Independent Newspapers (Ireland) Ltd v IA [2020] IECA 19: Cautions against altering reporting restrictions without the complainant’s position — contributes to the victim-notification analysis.
• WC v DPP [2024] IESC 48 and DPP v AM [2025] IESC 16: Recent Supreme Court pronouncements on the constitutional dignity and privacy of victims and the high necessity threshold for disclosure of sensitive records; while different from DARs, their logic informs victim-protective discretion and the concern about secondary victimisation.
• The People (DPP) v CP [2024] IESC 26: Clarifies transcript preparation norms in criminal appeals; special criminal appeal rules (Order 86C, RSC) prevail over general DAR access rules for parties to indictable criminal appeals.

3) Legal Reasoning and Principles Applied

a) Characterisation and jurisdiction

An access application is a separate civil matter even if it concerns a criminal trial’s DAR. It can be brought after the criminal proceeding has concluded, is not necessarily connected to the parties’ prosecution/defence interests, and does not depend on issues determined in the criminal trial. The High Court’s appellate jurisdiction was therefore engaged, and it erred in declining jurisdiction.

b) Threshold: “necessary in the interests of justice” and the “legitimate purpose” lens

The Court decisively frames the threshold as substantive, not formalistic. Applicants — especially non-parties — must show by affidavit:

• a legitimate purpose connected to the administration of justice (or, for statutory bodies, to the discharge of their statutory remit);
• relevance of the specific DAR material to that purpose; and
• necessity — including that equivalent information of the same quality is not realistically available by other means.

The Court rejects the argument that “open court” status alone supplies entitlement. It also rebuffs an analogy to inter partes discovery in civil cases: necessity for DAR access is assessed by a different yardstick keyed to the administration of justice and court control of its record.

c) The general principles (Order 67A/Order 123/Order 12B)

Adopting and refining the Attorney General’s submissions and the case law, the Court sets out a dozen guiding principles. Key elements include:

• any person may apply, but access is discretionary and never as-of-right;
• mere curiosity will not suffice;
• legitimate uses include advancing an appeal, clarifying what occurred below where central to another court’s task, using prior inconsistent statements in related proceedings, and supporting a statutory investigation;
• improper or abusive purposes will defeat access;
• special caution applies to criminal proceedings, to protect the integrity of trials and the rights and interests of accused persons and victims.

d) Notification: who must and who should be put on notice

The Rules require the moving party to notify the parties to the recorded proceedings. In criminal cases, that includes accused persons. Having checked basic compliance, a court may dismiss an evidently deficient application in limine without requiring broader notice — a pragmatic safeguard of court and party resources.

Beyond mandatory notification, the court may direct notice to any person with a sufficient interest or who may be affected. Without attempting an exhaustive list, the Court provides clear guidance:

• Where the application effectively imputes wrongdoing or attacks the good name of a person whose evidence is sought, that person (e.g., a witness) should be notified.
• If the DAR relates to ongoing or prospective criminal proceedings, the DPP (and, where appropriate, the Garda Commissioner) should be notified.
• Victims: Where a non-party seeks a victim’s testimony (or testimony directly touching on the victim’s experience), and the court considers a prima facie case for access has been made, notification to the victim should generally be directed. This balances the administration of justice with the dignity, privacy, and anti‑re‑traumatisation objectives reflected in the Constitution, the Victims’ Rights Directive, and the Criminal Justice (Victims of Crime) Act 2017 (including s.21).

The Court emphasises flexibility: not all applications will require victim notice; courts should assess impact, context, and adequacy of other safeguards in each case. Even where the DPP can convey victim views, victims have their own interest in being heard, especially regarding conditions and scope of access.

e) Restrictions on use and undertakings

Order 67A expressly empowers courts to impose terms restraining publication/dissemination and to require undertakings. The Court affirms robust use of this power:

• Open justice does not preclude restrictions on DAR use. Open hearings fulfil the constitutional imperative; DAR access engages distinct concerns of court process control and justice integrity.
• Where there are ongoing appeals, risk of retrials, or criminal investigations, restrictions and undertakings may be critical to protect proceedings.
• Victim-sensitive cases warrant particular care to avoid secondary victimisation or intimidation.
• Courts may require that DAR material be used only for the purpose for which access was granted, may limit who may receive it (including legal advisers), and may require return or destruction when the purpose concludes.
• Applications to relax restrictions (e.g., to make a criminal complaint) should be supported by specific affidavit evidence showing genuine need; courts will not facilitate speculative or intimidatory use.

f) Transcript versus audio

The Rules default to transcripts. Audio should be ordered only where necessary (e.g., urgency in habeas contexts, or where features intrinsic to the audio matter). If audio is to be released, courts must consider privilege leakage (oversensitive microphones), privacy risks, and any possibility of revealing the identity of protected/anonymised witnesses. Non‑release is mandated where real risks of identification arise.

g) Application to the facts

The applicant’s showing was sparse. He exhibited only a plenary summons and made general assertions of inconsistency. He did not provide pleadings or the affidavits said to be contradicted. In this posture, the Court found:

• Relevance and necessity were not demonstrated; access should have been refused at the outset.
• The limited release previously ordered (extracts of one witness’s testimony) would not have been warranted on the evidence filed; however, given the applicant’s undertaking and the risk of undermining that undertaking, rescinding that specific order would be counterproductive.
• Prospectively, no further access would be ordered. The Court affirmed the Circuit Court’s restrictive terms and directed that the victim-witness receive the same released transcript portion and be informed of the context of its release.

4) The New Framework: What the Decision Establishes

• Access is exceptional and controlled: Non-party access to DAR materials is discretionary, not a corollary of open justice. The test is necessity in the interests of justice, demonstrated by evidence.
• Gatekeeping by affidavit: Courts may refuse in limine where applicants do not provide sufficient particulars and documentation (e.g., relevant pleadings) linking the DAR sought to a legitimate justice purpose.
• Mandatory and discretionary notice: Parties to the recorded proceedings must be notified. Beyond that, courts should consider notification to witnesses whose good name is implicated, to the DPP/Garda Commissioner where criminal integrity is at stake, and generally to victims where their testimony is sought and a prima facie case is shown.
• Conditions are standard, not exceptional: Courts may impose purpose‑limiting terms, non‑dissemination undertakings, recipient limitations (including legal advisers), and return/destruction requirements, tailored to the risks and needs of the particular case.
• Audio is the exception: Release the transcript unless audio is demonstrably necessary; manage privacy, privilege, and identification risks with heightened scrutiny.

Impact and Implications

• For litigants and would‑be applicants: Applications must be evidence‑based and specific. Produce pleadings, identify issues in dispute, and explain why the DAR is needed and cannot be substituted by other evidence. Mere suspicions of inconsistency or broad assertions will fail.
• For witnesses and victims: Victim notification is now a recognised safeguard when their testimony is sought by non-parties. Courts will consider dignity, privacy, and the risk of secondary victimisation; victims may influence the scope and conditions of any access granted.
• For the DPP and Gardaí: Expect routine notice where criminal process integrity may be affected; be prepared to assist the court early (even at first return) to flag risks to pending or possible prosecutions and to convey victims’ views.
• For statutory bodies/regulators: Legitimate statutory purposes, especially criminal investigations, will support access, but proportionality and necessity still govern. The interaction with data protection remains open for fuller argument in future cases.
• For courts administration: The judgment recognises resource burdens and endorses early filtration of weak applications, thereby protecting court time and transcript resources.
• For media and open justice: The decision reaffirms that open hearings fulfil Article 34.1; it rejects any general public right to DAR access. Dedicated media‑access rules under the Data Protection Act 2018 were not in issue and remain for separate consideration.
• For criminal appeals: Parties to indictable matters access transcripts via Order 86C RSC, with the general DAR regime yielding to these specific provisions (as reinforced by DPP v CP).

Complex Concepts Simplified

• Digital Audio Recording (DAR): The official court-made audio record of proceedings. In practice, access typically means a transcript of the DAR.
• Necessary in the interests of justice: More than relevance. It requires an applicant to show a legitimate justice-related purpose, specific relevance to that purpose, and that equally effective alternative evidence is not reasonably available.
• Open justice: The constitutional principle that justice is administered in public. It ensures transparency of hearings but does not confer a right to take or access court audio records.
• Control of court processes: Courts have inherent and statutory authority (e.g., s.65, Courts Officers Act 1926) to regulate access to court records, including the DAR, to safeguard the administration of justice.
• Undertaking: A promise to the court, breach of which may be contempt. Often required to restrain dissemination or limit the use of DAR materials.
• Dismissal in limine: Refusal of an application at the threshold without full process or notice where it plainly fails to meet basic requirements.
• Sufficient interest: A practical threshold for who should be notified; persons whose interests may be adversely affected or who are likely to be affected by the access should generally be heard.
• In camera: Proceedings or parts thereof conducted otherwise than in public (e.g., family law). If any DAR material derives from such hearings, strict conditions (and often refusal) are likely.
• Prima facie case (for access): Enough specific, credible material to justify moving to the next stage (including notifying others); not a final proof, but clearly more than assertion.

Practical Guidance and Checklists

For Applicants (especially non-parties)

• Identify precisely which portions of the DAR/transcript you seek and why.
• Exhibit relevant pleadings/affidavits from the related proceedings to establish relevance.
• Explain why the material is necessary and why other sources (e.g., public records, interrogatories, witness summons) are inadequate.
• Anticipate and address integrity-of-proceedings issues (pending trials, appeals).
• Propose manageable conditions (e.g., undertakings, limited circulation, return/destruction) that balance your needs with justice-protection.

For Respondents (DPP, parties to recorded proceedings)

• On the first return date, assist the court to identify threshold defects and argue for dismissal in limine if warranted.
• Flag live or prospective criminal cases and the specific risks posed by disclosure.
• Where appropriate, liaise with victims to convey their views; suggest tailored conditions if access appears likely.

For Judges

• Scrutinise affidavit evidence rigorously; refuse in limine where necessity and relevance are not made out.
• Ensure mandatory notice to parties to the recorded proceedings; consider discretionary notice to witnesses and victims where their interests are implicated.
• Calibrate conditions to the case: purpose‑limitation, non‑dissemination, restricted recipients (including legal advisers), and return/destruction.
• Prefer transcripts; order audio only on demonstrated necessity, with privilege and privacy safeguards.

For Victims and Witnesses

• If notified, consider whether release could affect your privacy, safety, dignity, or well‑being; convey concerns to the court.
• Ask that any access be confined to what is strictly necessary and subject to strict undertakings on use and circulation.

Open Questions Reserved

• Interaction of DAR access with the Data Protection Act 2018 and the dedicated media-access rules (e.g., SI No. 660/2018) was not decided and awaits a suitable case.
• The precise scope of s.21 of the 2017 Act outside the trial setting (i.e., its application to DAR access motions) remains open, though the Court reads it as a legislative reflection of broader constitutional values protecting victims.

Conclusion

Smith v DPP establishes a comprehensive, principled architecture for non-party access to court audio records. It confirms that open justice does not translate into open audio; access turns on evidenced necessity for a legitimate justice-connected purpose. It clarifies who must and who should be notified — including a general expectation of notifying victims when their testimony is sought — and it endorses robust, purpose-limiting conditions and undertakings to protect the integrity of criminal proceedings and the dignity and privacy of victims. Audio is the exception; transcripts are the norm.

Applied to the case, the applicant’s sparse evidential foundation could not satisfy the threshold. The Supreme Court refused any further access, affirmed the existing restrictions, and directed that the victim-witness be informed and given the same transcript portion. The judgment thus balances transparency with discipline, ensuring that the courts’ control of their own records serves the administration of justice while respecting the rights and interests of all affected.