About this case:

• Citation:
  [2025] IEHC 349
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Emily Egan

Delivering judgment for the High Court, Ms Justice Emily Egan found that in circumstances where the applicant was statute-barred from bringing an election petition and where she had not indicated an intention to prosecute alleged electoral fraud offences personally, she had no basis for an independent application for production or inspection of electoral documents on her own behalf.

Background

The applicant, an unsuccessful electoral candidate in the Kerry constituency, alleged that on the night of the general election to Dáil Éireann held on 29 November 2024, she witnessed a presiding officer in Toureencahill polling station tearing ballot papers out of a ballot book, prompting her to make a complaint to gardaí.

The applicant was subsequently refused leave to present an election petition by Mr Justice Garrett Simons on 11 March 2025 on the basis that the time limit prescribed under the Electoral Act 1992 had expired in advance of the application for leave.

As a consequence of leave being refused to the applicant, her additional application pursuant to s.130 of the 1992 Act for production and inspection of “sealed documents” comprising ballot papers and their counterfoils was also refused.

Thereafter, the applicant brought an ex parte application before Ms Justice Egan seeking inter alia orders directing the clerk of the Dáil to permit the inspection of and the production of a copy of the marked electoral register for the general election of 29 November 2024 for the purposes of a criminal investigation into the events complained of.

The applicant also sought an order directing that the sealed envelopes containing the marked electoral register and other electoral documents for the election in the constituency of Kerry be retained by the appropriate authority and not destroyed until the completion of the investigation.

The High Court

Ms Justice Egan recalled that on 27 May 2025, she had delivered an oral ruling expressing doubt that the documents concerned were in fact being sought for the purposes of instituting or maintaining a prosecution for an offence under the 1992 Act as required by s.130 thereof, as she would have expected gardaí to make the application for access to the documents if a prosecution had been initiated.

Nonetheless, having regard to the wording of s.130(3) the court did not consider the fact that no prosecution had yet been initiated and that gardaí had not been the ones to request access to the documents to be fatal to the application.

In light of s.129 of the 1992 Act, which directs that unless otherwise directed by an order of the court the clerk shall destroy the “sealed documents” within six months of the date of the poll, the High Court had been satisfied that the making of an interim order ensuring the preservation of the documents pending further evidence on certain factual issues was appropriate.

A further inter partes hearing took place on 29 May 2025 following which the clerk agreed to inquire of gardaí as to whether the electoral materials sought were required for the purposes of instituting or maintaining a prosecution into the matters raised by the applicant.

On 18 June 2025, a further inter partes hearing took place in which the court considered a letter from a superintendent in Bandon Garda Station which stated inter alia that on the evidence gathered to date, gardaí had found no criminal offence but that if the applicant was successful in obtaining the documentation sought through the High Court, gardaí would examine them and would make a further assessment.

The clerk also exhibited correspondence with gardaí to an updated affidavit in which it enquired whether the electoral materials held by the clerk were required by gardaí for the purposes of instituting or maintaining a prosecution into the matters raised by the applicant, in response to which gardaí confirmed that the electoral material was required by gardaí as part of their investigation.

The clerk having accepted that the correspondence gave rise to a reasonable belief that the “sealed documents” may be required by gardaí for the purposes of instituting or maintaining a prosecution for an offence under the 1992 Act and having indicated that the documents would not be destroyed, Ms Justice Egan found no requirement to make the order sought by the applicant preserving the documents.

The judge also refused to make orders for the production and inspection of the “sealed documents” where the applicant’s application for leave to file a petition had been refused, where it was for gardaí as the prosecuting authority to seek production and inspection if deemed necessary, and where the applicant had never suggested that she intended to personally institute a prosecution “such as might be capable of grounding an independent application for production or inspection on her own behalf”.

Noting that the clerk had already permitted inspection by the applicant of the marked electoral register and had granted access to the applicant to an electronic copy of the marked register, and that the applicant was entitled to disclose the contents of the register to gardaí in the context of their investigation, the High Court was satisfied that no orders were required.

Conclusion

Accordingly, the High Court declined to make the orders sought.

Keane v The Clerk of the Dáil [2025] IEHC 349