Access to Court Audio Recordings: Necessity, Notice and Restrictions on Use

What You Need to Know

The Irish Supreme Court¹ has clarified the legal test to apply when a non-party to proceedings seeks access to the Court Service’s digital audio recording (the “DAR”) of those proceedings. An applicant must demonstrate by evidence that access to the DAR is “necessary in the interests of justice”, meaning a legitimate purpose connected with the administration of justice and not mere curiosity, and that information of the same quality cannot be obtained elsewhere.

Examples of such a purpose include the further prosecution of existing proceedings or an appeal, and for use in other related proceedings (e.g., to cross-examine a witness on a prior statement). The court also addressed the related questions of who should be notified of an application to access the DAR and the restrictions that may be imposed on an applicant’s use of the accessed DAR. The decision provides welcome clarity for parties and practitioners.

Background Facts

Mr Smith (the “Applicant”) and family members were defendants in civil proceedings brought by KBC Bank Ireland plc (the “Bank”) for possession of a property in Balbriggan, Co Dublin and to restrain their trespass (the “Injunction Proceedings”). The Bank previously obtained an order for possession of the property but there was significant public disorder when it sought to execute that order.

Separately, an attempt by the Bank to take possession of a different property in different ownership later the same year led to a violent disorder. Arising from that incident, four people were charged before Dublin Circuit Court with three of them convicted after a trial (the “Criminal Proceedings”). The Applicant and his family were not involved in the Criminal Proceedings.

The Applicant alleged that there were overlaps in the prosecution witnesses at that trial, the attempted execution of the possession order of his property and the Bank’s deponents in the later Injunction Proceedings. In particular, the Applicant alleged that during cross-examination at the criminal trial, one of the witnesses referenced the attempted execution of the possession order and that their affidavits in the Injunction Proceedings conflicted with their testimony in the Criminal Proceedings. He did not, however, specify precisely how the witnesses’ evidence allegedly conflicted.

The Applicant applied to the Circuit Court for access to the DAR of the Criminal Proceedings relating to the testimony given by the three witnesses. The Circuit Court limited the access to the evidence of the witness that supposedly referenced the attempted execution of the possession order and the Applicant provided an undertaking not to disseminate or publish the transcript further nor put it on social media. The Applicant appealed to the High Court seeking access to the part of the recording containing the evidence of all three witnesses, and the removal of the undertaking. The High Court determined that it had no jurisdiction to hear the appeal. The Applicant obtained leave to further appeal to the Supreme Court.

Access to the DAR – 12 General Principles

Ms Justice Donnelly delivered the court’s unanimous judgment. Mr Justice Collins provided a brief concurring judgment with some observations.

The court reviewed caselaw on access to DAR, on public access to documents opened in court and on the constitutional imperative that justice is administered in public. Though it respected that imperative, the court ruled that the fact that proceedings are heard in public does not mean that the public are entitled, as of right, to access the DAR. The recordings instead fell under the court’s power to regulate the conduct of its business further to its mandate to safeguard the administration of justice; open justice was served by the ability of the public to attend the original court hearing.

The default position is that access to the DAR, if granted, is by way of a transcript ordered by the Court Service and paid for by an applicant. The court confirmed that only in exceptional circumstances (e.g., urgency or where ambient audio is essential) and subject to necessary limitations and protections (e.g., a legal professional privilege review) would access to the raw audio material be granted.

The court recorded 12 general principles that apply to applications to access the DAR:

1. An application for access to the DAR may be brought by any person, regardless of whether they were a party to the proceedings.
2. Any order concerning access to the DAR is a discretionary order.
3. Access to the DAR is not automatic and is not something to which a party (or a non-party) to proceedings is entitled as of right.
4. A court must consider that it is necessary in the interests of justice to grant access. The corollary of this is that ‘mere curiosity’ is not sufficient for access.
5. The onus is on an applicant to establish that access to the DAR is necessary in the interests of justice. There must be a reason given and the onus must be discharged by evidence on affidavit.
6. Access to the DAR will generally be granted where it is legitimately sought in furtherance of an appeal.
7. Access to the DAR will be granted where the resolution as to what happened in the lower courts is central to the fair resolution of proceedings before the High Court, bearing in mind that the general thrust of the court rules is that an application ought first be made to the court in which the proceedings were heard.
8. Access to the DAR can legitimately be sought because of its potential relevance to other proceedings and it may be sought for the purpose of putting prior inconsistent statements to a witness in other proceedings.
9. Access to the DAR may be granted where it is sought for a legitimate purpose connected with the discharge by a public body of its statutory remit which includes the conduct of a criminal investigation.
10. In general, if a person, whether a party or non-party, wishes to obtain a transcript for a legitimate purpose connected with the administration of justice, and is willing to pay the necessary costs involved, then subject to any counter-argument raised by a party and to the requirement that it is necessarily required for a legitimate purpose, that person should be facilitated in obtaining access.
11. The court may decline to make an order for access to the DAR where it is sought for improper or unlawful purposes and/or the court is satisfied that it would be an abuse of the Court’s process to facilitate the applicant further.
12. Special considerations may need to be given where non-party access to the DAR of criminal proceedings is sought regarding the integrity of the criminal proceedings and the safeguarding of the appropriate rights and interests of any victim or of the accused.

Applied to the facts of this case, the court concluded that the Applicant fell a long way short of demonstrating the relevance of or the necessity for access to the DAR in the interest of justice. Rather, the Applicant made the baldest of assertions which appeared to have as their purpose a collateral attack on the possession order. It would not have released the limited portion of the transcript that the circuit court had ordered but as that had been done and to protect the undertaking granted, it affirmed the Circuit Court’s order, refused the appeal, and ordered that no further access to the DAR should be provided to the Applicant.

Notification

The court confirmed that parties to the recorded proceedings must be notified of the application. In addition, the court has a discretion to notify certain persons, especially those who may be affected by the application— e.g., the accused and the DPP in (intended) criminal proceedings, a victim who gave evidence in criminal proceedings, a witness whose good name is impugned in the future proceedings— though the categories of persons is not set and each application must be decided on a case-by-case basis. The court was also at pains to stress that though a trial may have taken place in public, those involved in a trial did not lose all their privacy rights and interests. The court also emphasised that issues such as data protection and media reporting had not been argued but could be relevant.

Notice to those parties by way of notice to the DPP or a prosecuting garda was insufficient. However, once notified, the interested party may choose to have their view expressed to the court through the DPP.

If a person or party had not be notified, but a court was satisfied that the application must be refused, then the court could do so without going through the formality of first notifying those parties.

The court also considered that if the threshold was met, and access to the DAR was granted, then the notified parties should be provided with a copy of the relevant transcript. In that vein, the court directed that the particular witness, a portion of whose evidence had been provided to the Applicant further to the Circuit Court order, be provided with a copy of the same portion of the transcript of the Criminal Proceedings together with an explanation.

Restrictions on Use

The court rules permit the court to impose conditions on the release of the DAR, including restraining the publication, dissemination or further disclosure of all or part of it by the applicant. Further, an applicant may be required to give an undertaking to the court to comply with those conditions.

The court agreed with the distinction made between cases where reporting or other restrictions were in place and which necessarily must follow through to the DAR of that hearing. But, for hearings heard in open, the Applicant contended that conditions could only be imposed in exceptional cases, relying on the principle of open justice. The court disagreed, basing its decision again on the power of the court to regulate its businesses, and instead preferred, by way of analogy with implied undertakings in the discovery of documents civil proceedings, that the court should consider restricting an applicant’s use of the DAR to their stated purpose.

Interestingly, the court highlighted the risks concerning social media and that the courts should exercise their powers to protect victims and others from undue and unwarranted publication of DAR on social media.

Applied to this case, where the undertaking was voluntarily provided, absent extenuating circumstances, the court found that there was no reason why the Applicant’s appeal would be allowed.

Takeaways

• Access to the DAR is not automatic and an applicant must demonstrate by evidence that the DAR (or a portion of the DAR) is sought for a legitimate purpose connected with the administration of justice; mere curiosity is insufficient. Moreover, an applicant must explain why similar other means or records are inadequate.
• Careful consideration must be given to persons who should be put on notice of an application seeking access to the DAR.
• Access, if granted, will usually only be effected by delivery of a transcript. Access to the raw audio is exceptional. The applicant must pay for the preparation of the transcript.
• An applicant can expect, if successful, that their use of the DAR will be limited to their stated (legitimate) purpose.
• Any persons notified of an application are entitled to a copy of the DAR transcript too, if the application is successful

Further Information

For further information, please liaise with your usual Maples Group contact or the person listed below.

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¹ Smith v. DPP [2025] IESC 42