DPP challenges decision to send evidence in suspect child porn case abroad for analysis

Sending hard drive to UK would mean Garda will lose control over material, says director

The DPP says it has a duty to persons depicted in images deemed to be child pornography to ensure that there is no further circulation of these images beyond what is strictly necessary

The DPP says it has a duty to persons depicted in images deemed to be child pornography to ensure that there is no further circulation of these images beyond what is strictly necessary

 

The Director of Public Prosecutions (DPP) has brought a High Court challenge against a judge’s direction that a copy of a hard drive allegedly containing thousands of images of child pornography be sent abroad for expert analysis.

The DPP has brought the action regarding the images on the drive, to be evidence in a forthcoming criminal trial, because the Garda would lose effective control over the images once they left the jurisdiction.

The DPP is seeking to quash Circuit Court judge Martin Nolan’s direction requiring the director to disclose a copy of a hard drive, allegedly seized from a person due to stand trial on charges of possession of child porn images, to an expert for the defence in the UK for analysis.

The accused man denies the charges against him and says the images are not his. As part of his defence, his lawyers want a copy of the seized hard drive forensically examined and a report prepared by expert scientists.

The DPP claims, normally in such cases, such experts would be allowed access to examine material at a Garda facility.

The court heard, due to the Covid-19 pandemic the UK-based expert says it is not feasible for them to travel to Ireland and undergo self- quarantine for a period following their arrival into Ireland.

Couriered

The man’s lawyers then obtained an order from Judge Nolan allowing the defence furnish the expert with a copy of the hard drive which would be couriered to the UK.

Gardaí objected to this order on grounds including that they would lose control of the images after they leave Ireland and they would no longer remain in Garda custody.

Represented by John Gallagher BL, the DPP says it has a duty to persons depicted in images deemed to be child pornography to ensure that there is no further circulation of these images beyond what is strictly necessary.

Once the images leave Ireland, the Garda loses the protection of the Irish courts to deal with any possible use of them.

The accused man is due to stand trial on charges of possessing the images, with the case scheduled to return before the Circuit Criminal Court next month.

It is also claimed that Judge Nolan did not have the jurisdiction to order the disclosure of the copy of the hard drive in the manner that he did.

In judicial review proceedings against the judges of the Circuit Court, the DPP seeks an order quashing Judge Nolan’s direction.

The DPP also seeks a declaration that the Garda Commissioner and the DPP cannot be directed to disclose a copy of the hard drive in a manner that would allow the material leave the country.

Notice parties

The Garda Commissioner and the accused, who cannot be named for legal reasons, are notice parties to the proceedings.

The matter came before Mr Justice Charles Meenan, who directed that the application for leave to bring the application be made in the presence of lawyers for the respondent, and the notice parties.

The judge also placed stays on the prosecution from proceeding and the copy of the hard drive from being handed over to the defence’s expert witness, pending the outcome of the High Court action.

The judge said that due to a lack of judges it would not be possible to hear the application before the prosecution is due to be heard.

The action was made returnable to a date in October.

The judge said that an application to lift the stays could be made by the respondent or the notice parties on 48 hours’ notice to the applicants.

Counsel for the accused, Giollaíosa Ó Lideadha SC, who was on notice of the DPP’s application, said his side opposed the stay on both Judge Nolan’s order and the trial from proceeding.

It is also expected that the man’s lawyers will opposed the DPP’s application for permission to bring the challenge when it returns before the court.