“Doing Justice” as a Basis for Disclosure of Special Criminal Court Open-Court Materials to a Public Inquiry

1. Introduction

In The Minister for Justice v The Director of Public Prosecutions and Anor [2025] IEHC 771, the High Court (Barniville P) addressed whether, and on what basis, it could direct the Registrar of the Special Criminal Court to produce copies of certain judgments and transcripts of sentencing remarks (all delivered in open court) to the Minister for Justice, so that the Minister could provide them to the Chair of the Omagh Bombing Inquiry.

The Inquiry is a statutory public inquiry established in Northern Ireland under the Inquiries Act 2005 (UK), tasked with investigating whether the 15 August 1998 Omagh bombing could reasonably have been prevented by UK state authorities, with particular attention to matters considered in (Re Gallagher [2021] NIQB 85). The Government of Ireland decided to assist the Inquiry and entered a Memorandum of Understanding with the Inquiry Chair governing cooperation and disclosure.

The application was brought by special summons. The relief ultimately sought was narrow: production of specified Special Criminal Court judgments and sentencing remarks relevant to the Inquiry, including two items to be produced if and when available (as they were being retrieved from storage).

2. Summary of the Judgment

  • The High Court confirmed it is the appropriate forum to entertain applications for production of Special Criminal Court materials, given the Special Criminal Court’s statutory nature and limited powers.
  • Applying the Supreme Court test in Breslin v McKenna [2009] 1 I.R. 298, the Court held that production should be ordered where:
    1. it is necessary for the purpose of doing justice; and
    2. there is no relevant legal prejudice to any party.
  • The Court held that doing justice is not confined to existing litigation and, on the facts, extended to enabling a public inquiry into the Omagh bombing to carry out its Terms of Reference.
  • The Court found no realistic possibility of legal prejudice because the documents were judgments and sentencing remarks delivered in open court.
  • An order issued (under the Court’s inherent jurisdiction) directing the Registrar to produce the listed documents to the Minister; with liberty to apply to avoid fresh proceedings if further issues arose.

3. Analysis

3.1 The Precedents Cited (and How They Shaped the Outcome)

Breslin v McKenna [2009] 1 I.R. 298

Breslin was the central authority. There, the Supreme Court (majority judgment delivered by Geoghegan J) addressed whether transcripts and books of evidence from Special Criminal Court trials could be furnished (with High Court permission) for use in civil proceedings arising out of the Omagh bombing.

Barniville P treated Breslin as establishing a workable and controlling framework:

  • No absolute prohibition exists on the provision of Special Criminal Court transcripts/materials, provided the High Court authorises release.
  • The authorisation depends on a dual inquiry: necessity for doing justice and absence of relevant legal prejudice.

The present case sits comfortably within the logic of Breslin, but with two features that make the case for disclosure stronger: (i) the documents were not evidential materials such as books of evidence, but rather open-court judgments and open-court sentencing remarks; and (ii) the destination was not private civil litigation but a statutory public inquiry of acknowledged public importance.

(Re Gallagher [2021] NIQB 85)

Although not used as a doctrinal source for the disclosure test, Re Gallagher featured in the Inquiry’s Terms of Reference and therefore helped define the Inquiry’s remit and the public context in which the High Court assessed doing justice. The reference underscored that the Inquiry was not exploratory in the abstract; it was mandated to examine issues already judicially ventilated and identified as significant.

3.2 Legal Reasoning

(a) Jurisdiction and Proper Forum

The Court emphasised that the Special Criminal Court is a creature of statute and, as such, does not itself possess a broad inherent power to release materials on request. The High Court, however, can act to facilitate release where appropriate. This point is practically important: it confirms that requests of this kind must be channelled through High Court proceedings rather than treated as an administrative disclosure decision by the Special Criminal Court.

(b) The “Doing Justice” Requirement—Expanded Beyond Litigation

The most significant aspect of the ruling is the Court’s treatment of the phrase for the purpose of doing justice (from Breslin). The Minister’s purpose was to provide the materials to the Inquiry Chair for use in a statutory inquiry process. The Court accepted that doing justice is capable of a wider meaning than assisting extant court proceedings.

Barniville P grounded that broader understanding in the specific context:

  • the Government’s formal decision to cooperate with the Inquiry and the related Memorandum of Understanding;
  • the Inquiry’s focus on a major atrocity with profound consequences for victims and families;
  • the public interest in enabling the Inquiry to perform its statutory function;
  • the fact that the requested documents were already delivered publicly in open court.

The Court therefore treated facilitating the Inquiry’s work as a concrete instance of doing justice, including (in the Court’s words and sense) justice to the deceased and to families who had awaited a mechanism of formal examination for many years.

(c) No Relevant Legal Prejudice

The Court found the no prejudice limb readily satisfied:

  • the documents were judgments and sentencing remarks delivered in open court;
  • the Director of Public Prosecutions, having been notified, confirmed there was no relevant legal prejudice;
  • the application did not seek sensitive untested material (e.g., unused evidence, intelligence, mid-trial matters), nor did it concern prospective trials where disclosure might affect fairness.

The Court contrasted the present request with more difficult scenarios where prejudice might realistically arise—for example, requests for materials not aired in public, acquittal-related files, or disclosure affecting future proceedings.

(d) Procedural Fairness: Notice to Affected Persons

The Court had earlier ruled that it was unnecessary to notify individuals referenced in the judgments/sentencing remarks, principally because the material was already public (open court). This reflects an important practical boundary: where what is sought is merely a copy of public court output, notice requirements may be reduced, though this will remain fact-sensitive in other categories of material.

(e) Tailored Relief and “Liberty to Apply”

The order was confined to a revised schedule (items 1 to 14(c)). For items 11 and 12, the order required production if and when available, reflecting the reality of archival retrieval. The Court also granted liberty to apply to avoid the inefficiency of commencing fresh proceedings if further issues about availability or additional documents emerged.

3.3 Impact

(a) Practical Pathway for Cross-Jurisdictional Public Inquiries

The ruling confirms a clear pathway for cooperation with a statutory inquiry outside the State: where open-court Special Criminal Court outputs are needed, the High Court can authorise provision to a Minister for onward transmission, using the Breslin framework.

(b) A Notable Clarification: “Doing Justice” Can Encompass Inquiry Functions

The most precedent-sensitive takeaway is the Court’s express acceptance that doing justice is not confined to supporting litigation, and may extend to enabling a public inquiry—particularly one addressing a legacy atrocity and operating under a formal cooperation framework. Future applicants are likely to rely on this reasoning when seeking court materials for:

  • commissions of investigation, tribunals, or statutory inquiries;
  • truth-recovery or legacy mechanisms;
  • other non-litigious but justice-adjacent processes, provided the prejudice limb is satisfied.

(c) Limits and Cautions

The decision is easiest to apply where the material sought is already public in nature. It should not be read as a general licence to obtain non-public prosecution or court files. The judgment itself flags that different considerations would arise where disclosure involves unled evidence, ongoing investigations, or prospective trials. In those cases, the legal prejudice analysis would likely be contested and may require notice to affected persons.

4. Complex Concepts Simplified

Inherent jurisdiction
The High Court’s residual power to regulate its own processes and to make orders necessary to ensure justice is done, even where no specific statute or rule expressly provides the mechanism. Here, it was used to direct production of court-held documents.
Creature of statute
A body whose powers are limited to what legislation grants. The Special Criminal Court cannot assume a general discretion to release records; hence, the High Court’s role.
“For the purpose of doing justice”
A legal threshold requiring the applicant to show that the order is needed to achieve justice in the relevant context. This judgment confirms that the concept can extend beyond litigation to a statutory public inquiry’s truth-finding and accountability functions, at least where the materials are open-court outputs.
Relevant legal prejudice
A realistic risk that disclosure would unfairly harm legal interests—such as trial fairness, confidentiality protected by law, or rights of parties in ongoing/prospective proceedings. The Court found none because the materials were already delivered publicly.
Liberty to apply
A procedural safeguard allowing parties to return to court under the existing case number if further directions are needed, reducing delay and cost.

5. Conclusion

The Minister for Justice v The Director of Public Prosecutions and Anor [2025] IEHC 771 applies Breslin v McKenna [2009] 1 I.R. 298 to confirm that the High Court may, under its inherent jurisdiction, direct the production of Special Criminal Court open-court materials where (i) it is necessary for the purpose of doing justice and (ii) no relevant legal prejudice arises. Importantly, the Court recognised that doing justice can extend beyond supporting court proceedings to enabling a statutory public inquiry into a major historical atrocity to perform its mandate.