Smith v The Director of Public Prosecutions [2025] IESC 42: Conditional, Purpose‑Limited Access to Court Audio and Transcripts under Order 123—No “Direct Line” from Open Justice to Record Access

Court: Supreme Court of Ireland

Judges: Dunne J; Woulfe J; Hogan J; Collins J (judgment); Donnelly J (principal judgment)

Date: 30 October 2025

Status: Final but unapproved

Introduction

This appeal concerns whether, and on what terms, a person may obtain access to the Digital Audio Recording (DAR) of court proceedings—or a transcript of that recording—when proceedings were heard in open court. At the heart of the case is the relationship between the constitutional principle of open justice (Article 34.1) and access to court records, and the specific mechanisms and limits contained in Order 123 of the Rules of the Superior Courts (RSC).

The appellant, Gordon Smith, sought access to the DAR/transcript of Circuit Court proceedings. The Supreme Court (Collins J, concurring fully with Donnelly J) uses the case to restate and refine the legal architecture for access to such records: there is no automatic right of public access to court records (even where the hearing was in public); access is a matter for the court’s control; and it may only be granted where the court considers it “necessary in the interests of justice.” The Court also clarifies when and how other affected persons—especially victims—should be notified, and emphasises that any access granted will generally be purpose-limited and subject to conditions restraining publication or further dissemination.

The decision gives structured, practical guidance to courts and practitioners on applications under Order 123, while signalling that data protection considerations—although not argued here—will soon need to be addressed in this area.

Summary of the Judgment

• Open justice does not equate to a general right of public access to court records. The law draws a distinction between public attendance at hearings and subsequent access to records of those hearings.
• Order 123 RSC governs access to DARs and transcripts. It confers no entitlement as of right. Access may be granted only where the court “considers it necessary in the interests of justice.” That standard is “flexible and generous but also meaningful.”
• Courts retain control over their records. Even when transcripts are provided (e.g., to a defendant for appeal), they remain under court control and may not be repurposed without permission.
• When access is sought for a specific purpose, courts should generally tether any grant to that purpose, by imposing terms and conditions (including restraints on publication or further disclosure) and by taking undertakings as appropriate. The Court expressly rejects any presumption against imposing such conditions.
• Applications should be managed proportionately: the court may need to notify other parties or persons with sufficient interest (notably victims), but should avoid turning access applications into burdensome satellite litigation.
• Privacy interests of litigants, victims and witnesses persist despite open hearings; courts should be attuned to the added impact of releasing durable records of evidence.
• On the facts, there was no sufficient evidential basis to conclude that granting access was “necessary in the interests of justice.” The application should have been refused at the threshold. If considering access to a victim’s evidence, the President of the Circuit Court should have directed service on the victim (IG). However, the Court declines to lay down a rigid rule that victims must be notified in every case; service depends on the circumstances.

Analysis

Precedents Cited and Their Influence

• Irish Times v Ireland [1998] 1 IR 359: Keane J famously underlined that public administration of justice is a hallmark of democracy. The Court leans on this principle to acknowledge the starting point of openness, but then emphasizes that openness does not, of itself, create a right to access court records.
• BPSG Ltd v The Courts Service [2017] IEHC 209; [2017] 2 IR 343: Baker J articulated the distinction between attending open court and accessing records created by the court. This distinction frames the core message: open doors do not mean open files.
• Minister for Justice, Equality and Law Reform v Information Commissioner [2001] IEHC 35; [2001] 3 IR 43: Finnegan J held that official transcripts held by the Circuit Criminal Court fall outside Freedom of Information access. The point is constitutional and structural: courts themselves control their records; access is for the courts to regulate—not an FOI question.
• Breslin v McKenna [2008] IESC 43; [2009] 1 IR 298: Geoghegan J confirmed that transcripts provided to a criminal defendant remain under the court’s control and cannot be used for other purposes absent court permission. The Supreme Court permitted production for separate civil proceedings in Northern Ireland because it was “necessary for the purpose of doing justice” and there was no demonstrated legal prejudice. Crucially, Breslin roots the restriction in the courts’ responsibility for the due administration of justice, not in an “implied undertaking.”
• People (DPP) v AM [2025] IESC 16: The Court reiterates that participants do not lose their privacy rights by participating in the justice system. This informs the protective stance toward durable records (like transcripts/DAR) as distinct from transient oral testimony.
• Bank of Ireland v Gormley [2020] IECA 102; Beatty v The Military Judge [2021] IECA 69; GSOC v Board of Management of Wilson’s Hospital School [2024] IECA 86: These Court of Appeal authorities emphasize that there is no unqualified right to court records; access is discretionary and governed by necessity in the interests of justice. The Supreme Court aligns Order 123 with that consistent approach.
• Student Transport Scheme Ltd v Minister for Education and Skills [2024] IESC 37: The Supreme Court previously stated that where a person seeks transcripts “for a legitimate purpose connected with the administration of justice,” they should generally be facilitated. That facilitation is filtered through the “interests of justice” test, not through entitlement as of right.
• Law Society of Ireland v Ellis [2023] IEHC 728: The Supreme Court respectfully disagrees with any suggestion that conditions on access (e.g., restraints on publication) should be exceptional. It holds that conditions are an essential safeguard and will commonly be appropriate, especially where access is justified by a particular stated purpose.

Legal Reasoning

The Court’s reasoning proceeds in carefully staged steps that reconcile open justice with the courts’ constitutional obligation to manage and protect their records in the interests of justice.

1. No “direct line” from open justice to record access. The Constitution mandates that justice be administered in public save as prescribed by law. But the law has never recognized that this yields an automatic right to access court records. The Court restates the established distinction between attending the hearing and accessing durable records afterwards.
2. Court control over records; FOI inapplicable. Court records are under judicial control; access is regulated by the courts themselves. FOI legislation does not open a parallel gateway to such records.
3. The governing rule: Order 123 RSC. Access to DAR or transcripts is available only if “necessary in the interests of justice” (Order 123, r. 9(4)). The Court describes this threshold as “flexible and generous but also meaningful.” It is not satisfied by a mere assertion of convenience or curiosity; it requires evidence that access is needed to do justice in the particular case.
4. Interests beyond the applicant’s interests matter. The test focuses on the interests of justice, not exclusively on the applicant’s interests. Order 123 therefore requires notice to parties and empowers the court to direct service on other persons with a sufficient interest (r. 9(1)–(2)). These provisions equip the court to consider the impact of access on victims, witnesses, or others whose rights or interests may be engaged.
5. Proportional process; avoid satellite litigation. The Court cautions against allowing access applications to swell into resource‑intensive disputes. Applications should be handled expeditiously and informally, consistent with the Rules and justice. If refusal is obvious, there is no need to notify more persons; conversely, where access is plainly warranted (e.g., a convicted person seeking a trial transcript to appeal), the court may grant access without extensive notification, though fairness may justify notifying affected persons that an order has issued.
6. Conditions are the norm, not the exception. If access is granted for a stated, specific purpose, it should ordinarily be granted for that purpose only. Courts may—and commonly should—impose conditions, including restraints on publication or further dissemination, and should take undertakings to that effect. This ensures the grant aligns with the necessity that justified it. The Court expressly rejects a rule or presumption that conditions should be exceptional or imposed only upon proof of likely abuse or contempt.
7. Privacy, victim status, and pending proceedings. The Court recognizes the enhanced privacy implications of releasing durable records beyond the ephemeral hearing. Victim status under the Criminal Justice (Victims of Crime) Act 2017 and the EU Victims’ Rights Directive is a relevant consideration. While there is no rigid rule that victims must always be made notice parties, a court should give special regard to their status when deciding whether to notify and when setting the scope and terms of any access. The potential effect on pending criminal proceedings is also a factor.
8. Data protection considerations lie ahead. The Court notes that the Data Protection Act 2018 and the GDPR may have significant implications in this area, though the parties did not argue the point here. This signals future doctrinal development.
9. Application of principles to the facts. On the evidence presented, the applicant did not establish that access to the DAR/transcript was necessary in the interests of justice. The application should have been refused at the outset. Furthermore, if the President of the Circuit Court had been minded to consider granting access to a victim’s evidence, he should have directed service on the victim (IG) before making any order. However, the Court resists creating an a priori rule requiring service on every victim in every case; the necessity of service depends on the facts (including the purpose for access, the nature of the offence, whether the hearing was public or not, and the victim’s age and circumstances).

Impact

The judgment has immediate and practical consequences for litigation conduct and court administration:

• Access to DAR/transcripts is not automatic: Applicants must evidence why access is necessary to achieve justice in the relevant matter. Mere convenience or general public interest will not suffice outside media contexts specifically provided for elsewhere.
• Purpose‑limited grants and conditions will become routine: Courts are encouraged to tie access to a specific, articulated purpose, restrict broader use, and impose undertakings. This curbs repurposing of records and protects privacy and process integrity.
• Notice practice clarified but flexible: Victims do not automatically become necessary notice parties; however, courts should give special regard to victim status and consider notifying victims or other interested persons where fairness or potential impact justifies it. Courts may also solicit views informally (e.g., through the DPP) to avoid burdensome satellite litigation.
• Appeals and trial needs remain facilitated: Where a convicted person seeks transcripts in aid of an appeal, access will typically be facilitated under the “interests of justice” test, often without extensive notification, though terms may still be imposed limiting use to the appeal.
• Media access left for another day: The Court expressly notes the special position of bona fide media under specific rules (Superior Courts Rules 2018, s.159(7)), but media access was not at issue here.
• Data protection horizon: Future cases can be expected to contend with GDPR and Data Protection Act issues (e.g., the status of DARs as personal data, the scope of judicial processing exemptions, and safeguards for publication of transcripts).

Complex Concepts Simplified

• Open justice: The constitutional principle that court hearings are ordinarily held in public. It promotes transparency and accountability. However, it does not automatically extend to granting everyone copies of court records.
• Digital Audio Recording (DAR): The official audio record of court proceedings used to generate transcripts. It is a court record, under the court’s control.
• Order 123, Rules of the Superior Courts: The procedural code governing access to DARs and transcripts. Access is discretionary and may be granted “where [the court] considers it necessary in the interests of justice” (r. 9(4)).
• “Necessary in the interests of justice” test: A standard requiring the applicant to show that access is required—not merely helpful—to fairly resolve a legal issue or proceeding, accounting for countervailing interests (e.g., privacy, pending proceedings).
• Notice / Notice parties: Persons who must be told about an application so they can be heard if they wish. Order 123 requires notice to the parties and permits the court to direct service on others who may be affected (e.g., victims, key witnesses).
• Conditions on access: Terms imposed by the court limiting how records may be used (e.g., to a stated purpose) and restricting publication or further disclosure, often backed by an undertaking.
• “In limine” refusal: Denial of an application at the threshold, i.e., without a full hearing or elaborate process, where it is clearly unsustainable.
• Satellite litigation: Ancillary disputes that distract from and consume resources beyond the main proceedings. The Court cautions against letting access applications become such disputes.

Practical Guidance Drawn from the Judgment

• For applicants: Clearly identify the specific legal purpose for which access is sought and explain why access is necessary to achieve that purpose. Provide evidence, not assertion. Anticipate and address privacy and fairness concerns. Be prepared to accept conditions limiting use to the stated purpose.
• For respondents (including the DPP) and third parties: Focus submissions on whether the applicant’s purpose genuinely requires access, what narrower alternatives exist, and what conditions or redactions are necessary if access is granted. Where relevant, identify victims or witnesses who may need to be notified or whose views should be solicited.
• For courts: Apply the “interests of justice” test with practical judgment. Keep the process proportionate: notify others only where needed, and state clearly that they may communicate views informally. If access is granted, tailor conditions to the purpose; require undertakings; and consider notifying affected persons of any order made and its scope.

Conclusion

Smith v DPP is a significant restatement and refinement of the law governing access to court audio recordings and transcripts. The Supreme Court affirms that there is no automatic entitlement to such records—even for hearings held in public—and that access is controlled by the courts under a meaningful “interests of justice” standard. The judgment emphasizes:

• The distinction between open hearings and access to durable records;
• The centrality of judicial control over court records, outside FOI;
• The need to balance applicants’ purposes against the rights of victims and witnesses, the integrity of ongoing proceedings, and privacy concerns;
• Proportionate procedure, avoiding satellite litigation;
• Routine use of conditions to tether any grant of access to the specific, justified purpose.

On the facts, the Court found no sufficient basis to treat access as necessary in the interests of justice and held that the application should have been refused at the threshold. It also provides nuanced guidance on when victims should be notified, resisting an inflexible rule while recognizing their special status. Looking ahead, the Court signals that data protection law will play a growing role in this space. The decision will shape everyday practice on transcript/DAR applications, anchoring them in a clear, purpose‑limited, and rights‑sensitive framework.

---

Note: The Court acknowledged, but did not decide, issues concerning media access (see Data Protection Act 2018 (Section 159(7): Superior Courts) Rules 2018 (SI No 660/2018)), and it flagged the prospective relevance of the Data Protection Act 2018 and the GDPR to access applications of this kind.