Inherent Jurisdiction to Compel Special Criminal Court Transcripts for Use in Criminal Appeals: “Necessary to Do Justice” and “No Relevant Legal Prejudice” Clarified

Case: Keogh v Special Criminal Court [2025] IEHC 489 (High Court of Ireland, Cahill J., 12 September 2025)

Introduction

This decision addresses whether and how a person convicted in one trial can gain access to transcripts from the Special Criminal Court (SCC) of a separate, later trial concerning the same murder, for the purpose of advancing his pending appeal. The plaintiff, Jonathan Keogh, convicted of the murder of Gareth Hutch in 2018 and currently appealing that conviction, sought access to the full transcripts and judgment of the SCC trial of Thomas McConnell, who was later convicted of the same murder in 2024. The SCC and the Director of Public Prosecutions (DPP) adopted a neutral stance; McConnell opposed, save for consenting to disclosure of limited portions (two witnesses).

The High Court was asked to decide three issues: (1) whether it had jurisdiction to make the order; (2) what legal test governs such applications; and (3) how the test applies on the facts. In doing so, the Court revisits and refines the principles from Kelly v Ireland and the Supreme Court’s seminal decision in Breslin v McKenna, while taking guidance from Bank of Ireland v Gormley on “interests of justice” access to court records.

Summary of the Judgment

• Jurisdiction: The High Court has inherent jurisdiction to direct disclosure of SCC transcripts where no adequate procedural rule governs access (paras 11–37). Order 123 RSC (DAR access) and Order 86C (appeal transcripts) do not apply to SCC transcripts; the SCC has previously indicated a lack of jurisdiction to entertain such applications. The High Court therefore may act to vindicate constitutional rights.
• Applicable test: The Court adopts the Breslin/Kelly standard: disclosure may be ordered if (i) it is necessary for the purpose of doing justice and (ii) there is no relevant legal prejudice to the other party (paras 38–41). The Court treats these limbs as part of a balancing exercise (paras 42, 60–61), not strict sequential hurdles, and clarifies that “necessity” is not an absolute threshold (paras 57–59). Guidance in Gormley suggests the applicant must give “some reason” demonstrating the necessity in the interests of justice (paras 51–53).
• Application to the facts: On the evidential record, the transcripts are potentially relevant to Mr Keogh’s appeal (overlaps and possible inconsistencies across the two trials, including a key witness and a Garda witness with later disciplinary issues). The inability to specify exact passages is explained by his non-participation in McConnell’s trial; that explanation is accepted (paras 64–79). Security and publicity concerns advanced by McConnell do not constitute “relevant legal prejudice” under Breslin (paras 79–80). The Court therefore orders access to the full transcripts and judgment, subject to an undertaking restricting use to the appeal (paras 81–83).

Analysis

A. Precedents and Authorities Cited

• Kelly v Ireland [1986] ILRM 318:
  O’Hanlon J held that, although the SCC controls its own procedures (s.41 Offences against the State Act 1939), the High Court can ensure that, where necessary to do justice in litigation between contesting parties, extracts from SCC transcripts can be made available or compelled. This foundational statement underpins the modern test (para 21).
• Breslin v McKenna [2009] 1 IR 298 (SC):
  The Supreme Court confirmed (Geoghegan J, Murray CJ conc.) that the High Court has “full jurisdiction” to facilitate production of SCC transcripts and books of evidence, notwithstanding the absence of a specific rule providing for such access, and that procedural rules could not determine the issue (paras 25–30). The Court articulated the governing test: disclosure may be allowed if necessary to do justice and absent relevant legal prejudice (para 29). The majority downplayed possible future retrial prejudice if a fair trial can be ensured (para 46); Hardiman J dissented on application due to insufficient information but accepted the governing principles and cautioned on evidential sufficiency (paras 46–49).
• Lopes v Minister for Justice [2014] 2 IR 301 (SC):
  The Supreme Court explained inherent jurisdiction operates where procedural law provides no adequate route; it should not be invoked if a satisfactory regime already exists (para 12). Here, no existing rule governs SCC transcript access.
• Re KK [2023] IEHC 565:
  Hyland J emphasized the breadth and flexibility of the High Court’s inherent jurisdiction to vindicate rights, and the imprudence of rigid rules in this context (para 19; para 58).
• Bank of Ireland v Gormley [2020] IECA 102:
  Interpreting Order 123 RSC (DAR access) as an “interests of justice” gateway that requires “some reason” and can include relevance to other proceedings (paras 51–53). Although Order 123 does not apply to SCC transcripts, its “interests of justice” analysis usefully informs the necessity limb under the inherent jurisdiction.
• Minister for Justice v Information Commissioner [2001] 3 IR 43; Chambers v Times Newspapers Ltd [1999] 2 IR 424; Taylor v Clonmel Healthcare Ltd [2004] 1 IR 169:
  Authorities referenced in Breslin concerning discovery and the approach to relevance and necessity, illustrating that transcripts can be discoverable in civil litigation, and that the necessity threshold in the present inherent jurisdiction context should not be set higher than in civil discovery (paras 57, 59).
• Statutory and Rules Framework:
  • Offences against the State Act 1939, s.41(1): SCC controls its own procedure; s.43 defines SCC jurisdiction (para 17).
  • Special Criminal Court (No. 1 & No. 2) Rules 2016, r.28: transcript writer must produce and lodge transcripts; however, no access regime for third parties (paras 13–14).
  • Rules of the Superior Courts: Order 123 r.9 (DAR access) and Order 86C r.9 (appeal transcripts) are not available routes for SCC transcripts, particularly where the application is not “in the proceedings concerned” and not an appeal from the same proceedings (paras 15–18).

B. The Court’s Legal Reasoning

1) Jurisdiction

The Court first ensures there is no applicable procedural rule (per Lopes) and concludes that neither the SCC Rules nor the RSC provide a route to SCC transcripts for non-parties in other proceedings (paras 13–18). The Court then relies on Kelly and Breslin to confirm inherent High Court jurisdiction to permit or direct disclosure of SCC transcripts when necessary to vindicate rights and ensure justice (paras 20–37). Although Breslin involved a permissive order aligned with a Northern Irish directive, the High Court holds that these factual differences go to the exercise of jurisdiction, not its existence (paras 31–35).

2) The Test and Its Calibration

The governing test, grounded in Kelly and endorsed in Breslin, comprises two elements: necessity for the purpose of doing justice, and absence of relevant legal prejudice (paras 38–41). The judgment develops three important clarifications:

• Balanced assessment: Necessity and prejudice are not rigidly sequential; they are weighed together (paras 42, 60–61).
• Necessity is not absolute: The applicant need not prove that success in the other proceedings hinges exclusively on the transcripts. Drawing on Gormley, “some reason” showing that access is necessary in the interests of justice can suffice, particularly where the material is potentially relevant to the issues on appeal (paras 51–53, 57–59).
• Prejudice must be legal: Under Breslin, the mere existence of prejudicial or damaging content is insufficient; what matters is “relevant legal prejudice.” Security and publicity risks, as framed here, are not of that character (paras 61, 79–80).

3) Application to Mr Keogh’s Request

Several points drove the outcome:

• Potential relevance to appeal: The transcripts may reveal overlaps, inconsistencies, and evolutions between the two prosecutions (including testimony from the same key witness, Ms McDonnell, and the presence of evidence from Detective Garda Keyes, whose later suspension led to disclosure rulings in McConnell’s trial). These are “weighty reasons” and directly connected to the grounds of appeal (paras 64–67, 77).
• Appellant’s information deficit: Keogh was not present at McConnell’s trial and cannot pinpoint exact passages; the Court accepts this as a valid explanation rather than a deficiency of proof, distinguishing the evidential concerns identified by Hardiman J in Breslin (paras 78–79).
• Magnitude of risk in criminal appeals: Denying a criminal appellant access to potentially relevant material poses a qualitatively greater risk than in civil litigation; this context warrants avoiding unduly heavy burdens (para 76).
• No relevant legal prejudice to McConnell: The transcripts are not to be used against McConnell; their damaging potential is not enough to refuse disclosure. Security/publicity fears do not amount to the sort of “legal prejudice” contemplated by Breslin (paras 79–80).
• Undertakings as safeguards: The Court will require an undertaking restricting use to the appeal and limiting dissemination, a proportionate means to protect interests while enabling justice (paras 82–83).

C. Impact and Significance

• Clear route for non-party access to SCC transcripts in aid of criminal appeals: Where procedural rules are silent, the High Court can order disclosure under its inherent jurisdiction. This closes a practical gap and provides a principled pathway for appellants seeking material from related SCC trials.
• Refined “necessity” standard: The Court confirms that “necessary to do justice” is a flexible, context-sensitive threshold. It does not require pinpoint identification of passages where such precision is impossible without access. Reasons showing potential materiality to live appellate issues can suffice, especially in criminal appeals.
• Narrowing “prejudice” to the legal kind: The concept of “relevant legal prejudice” is sharpened: reputational harm, general sensitivity, or risks of future publicity are not, without more, legal prejudice. This will constrain resistance to transcript access grounded solely on non-legal harms.
• Protective undertakings as standard practice: The Court envisages confidentiality and use-limitation undertakings to balance openness with protection, echoing discovery practice.
• Institutional comity and procedural clarity: The decision respects SCC’s autonomy over its own procedure while confirming that, at system level, the High Court can ensure justice is done by authorizing (and here, directing) access. DPP and SCC neutrality in this case suggests institutional acceptance of the High Court’s role.
• Guidance beyond SCC: While focused on SCC transcripts, the reasoning may influence approaches to accessing records from other criminal proceedings where specific rules are absent and constitutional rights are engaged.

Complex Concepts Simplified

• Inherent Jurisdiction: A court’s residual power to act to ensure justice where no statute or procedural rule adequately addresses the need. It cannot be used to bypass existing adequate procedures.
• “Necessary for the purpose of doing justice”: Not absolute necessity. The applicant must give concrete, case-linked reasons showing that access materially assists the fair adjudication of the related proceedings (here, the appeal). It is a flexible standard, calibrated to context.
• “Relevant legal prejudice”: Prejudice of a kind that would undermine legal rights or the integrity of legal processes (e.g., real risk to fair trial rights). Mere embarrassment, sensitivity, or a prospect of adverse publicity typically does not qualify.
• Discovery vs Access by Inherent Jurisdiction: Discovery compels parties in litigation to disclose relevant documents to each other under established rules. Inherent-jurisdiction access is a separate, rights-vindicating mechanism used where discovery is unavailable (e.g., different proceedings; non-party custody) but justice nonetheless requires access.
• Digital Audio Recording (DAR) vs Transcripts: DAR is the audio record of court proceedings; Order 123 RSC governs access to DAR for the superior courts, not the SCC. SCC transcripts exist under SCC Rules 2016 but those rules do not provide a third-party access regime.
• Books of Evidence vs Transcripts: Books of evidence comprise the prosecution’s documents served pre-trial; transcripts are verbatim records of what was said and done in court. Different considerations may apply to each in access applications.
• Protective Undertakings: Assurances to the court limiting the use and dissemination of disclosed material (e.g., “use only for the appeal,” no onward publication), enforceable by the court to protect interests while allowing access.

Practical Guidance for Practitioners

• Which court? Apply to the High Court for SCC transcripts where no procedural rule provides a route. Put the SCC and the DPP on notice and join any person whose legal interests may be affected (e.g., the convicted person in the other trial).
• Grounding evidence: Provide:
  • A clear account of the related proceedings and live issues (e.g., grounds of appeal).
  • Specific reasons why the transcripts are potentially material (overlapping witnesses, evolving prosecution theory, rulings relevant to disclosure).
  • Explanation if precise portions cannot be identified due to non-participation.
• Address “legal prejudice” squarely: Anticipate and rebut claims of prejudice. Distinguish non-legal harms (publicity/sensitivity) from legal prejudice (fair-trial or legal rights impacts). Offer undertakings to limit use and dissemination.
• Scope: Ask for the judgment and full transcripts unless there is a principled reason to limit scope. A piecemeal approach may be inadequate where the theory of necessity depends on cross-comparison and context.
• Safeguards: Propose a confidentiality/use-limitation undertaking, possible redactions for narrowly tailored, demonstrable risks, and a process to resolve disputes over scope or further portions as needed.
• Costs: Be prepared to address the costs of producing or copying transcripts and the costs of the application; invite the court’s directions.

Unresolved Questions and Limits

• SCC’s own jurisdiction: The Supreme Court in Breslin left open whether the SCC might itself have jurisdiction to rule on transcript access; this case did not require deciding that question (paras 25–27).
• Contours of “relevant legal prejudice”: The judgment confirms that security/publicity concerns are not, without more, legal prejudice. Future cases may explore whether and when fair-trial risks for other persons, privacy, or witness-safety concerns rise to legal prejudice and what protective measures are apt.
• Precision required for “necessity”: The Court accepts credible reasons without granular specification where the applicant lacked access. This is fact-sensitive; where applicants have more information (as in Breslin), greater specificity may be expected.
• Trans-subject extension: Although directed to SCC transcripts, the reasoning may inform access to other criminal-court records in the absence of rules; the institutional and statutory contexts will matter.
• Administrative details: The Court reserved submissions on undertakings and costs (para 83), setting a further date (para 84). The opinion contains an apparent typographical anomaly in the hearing date (“23 June 2024”) relative to the application issue date; this does not affect the legal analysis.

Conclusion

Keogh v Special Criminal Court is a significant restatement and refinement of the High Court’s inherent power to secure access to SCC transcripts in aid of justice. It confirms that, in the absence of an applicable rule, the High Court can direct disclosure where the applicant shows that access is necessary for the purpose of doing justice and no relevant legal prejudice would result. The judgment clarifies that necessity is a flexible, context-driven standard—particularly sensitive in criminal appeals—and that non-legal harms, such as generalized sensitivity or potential publicity, do not suffice to defeat access. Protective undertakings provide a balanced mechanism to reconcile openness with legitimate protection needs.

In practical terms, the decision offers a principled and accessible pathway for appellants to obtain potentially pivotal material from related SCC proceedings. In doctrinal terms, it harmonizes Kelly and Breslin with modern “interests of justice” reasoning, ensuring that the pursuit of appellate justice is not thwarted by procedural lacunae or overbroad claims of non-legal prejudice.