Boyle v Governor of St Patricks Institution
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 25 June 2015 |
| Neutral Citation | [2015] IEHC 410 |
| Court | High Court |
| Docket Number | [2010 No. 5845 P.] |
| Date | 25 June 2015 |
[2015] IEHC 410
THE HIGH COURT
Barr J.
[2010 No. 5845 P.]
Tort – Damages & Restitution – Professional Ethics & Regulation – Print media – Wrongful disclosure of information – Journalistic privileges – Art. 40.6.1 of the Constitution – Art. 11 of the Charter of Fundamental Eights – Exposure of source of information
Following the issuance of a subpoena duces tecum to the applicant to testify as a witness and produce relevant documents at the trial of the proceedings instituted by the plaintiff against the defendants for personal injury and damage, the applicant now came to the Court seeking an order for setting aside the said subpoena. The applicant contended that he could not reveal the source of the confidential information upon which his article about the plaintiff was based claiming journalistic privilege. The plaintiff contended that the testification of the applicant was crucial to prove the leakage of information.
Mr. Justice Barr refused to grant an order for setting aside the subpoena duces tecum. However, the Court granted an order thereby requiring the applicant to provide the notes and memoranda concerning the said article after redacting the parts that could identify his sources. The Court held that it had discretion to set aside the summons for the production of documents if what was sought was irrelevant, oppressive, an abuse of the process of law and was privileged. The Court found that the applicant being the author of the article that contained confidential information about the alleged incident involving the plaintiff was an important link to establish the guilt of the defendants. The Court opined that journalistic privileges must be given high regard in society because the journalists had the key role of dissemination of information and institution of public debate, which was the bedrock of a democratic society. The Court, however, held that the Courts were vested with adequate powers to deal with situations where there was a misuse of that rightful liberty under the guise of immunity.
The plaintiff in these proceedings was, at all material times, a teacher employed by the County Dublin Vocational Education Committee and was seconded to work as a teacher in the Prison Service. At the relevant time, she taught maths and computer science to prisoners in St. Patrick's Institution, Mountjoy Prison, Dublin.
Her action arises out of an incident which occurred on 3rd September, 2008, when she was found to have a mobile telephone beneath her bra-strap as she was going through the scanning machine at the entrance to the prison. The plaintiff claims that this was due to inadvertence on her part. She denies that she intended to bring the mobile phone into the prison.
The defendants do not accept the plaintiff's version of events. As the trial is at a very early stage, it is not appropriate to say any more about the incident.
The plaintiff alleges that while carrying out an investigation into the matter, the defendants wrongfully communicated with a journalist working for the Irish Daily Star newspaper. In essence, she alleges that the defendants leaked to a journalist, a version of the events which had occurred on 3rd September, 2008. As a result of the said leak, it is alleged that an article was written by Mr. Michael O'Toole (hereinafter 'the applicant') and carried in the newspaper on 9th September, 2008.
The plaintiff has pleaded as follows in relation to the alleged leaking of the story to the newspaper:-
'13. In the premises, the plaintiff as a citizen of Ireland was at all material times entitled to basic fairness of procedures including the right to confidentiality from the first named defendant and her staff and from the second named defendant and from the other defendants, their respective servants or agents who had possession of information in relation to the incident and its investigation and the assessment of the plaintiff's employment with the defendants.
14. Further, in communicating of and concerning the incident and in disclosing and furnishing information to the media and in particular the Daily Star of and concerning the plaintiff, the defendants, their servants or agents acted in breach of the plaintiff's constitutional right to privacy, fair procedures, her right to be employed within the State, her right to inviolability and her right to bodily integrity and right to basic fairness of procedures.
15. Further, the defendants and each of them or one or more of them, their servants or agents were guilty of misfeasance of public office in and about disclosing and furnishing information and communicating with the media and members of the public of and concerning the plaintiff.
16. By reason of the foregoing, the plaintiff has suffered serious personal injuries, loss, damage, mental distress, inconvenience and anxiety.'
On 10th June, 2015, the plaintiff issued a subpoena duces tecum directed to the applicant, ordering him to attend at the High Court in Dublin on 16th June, 2015, and from day to day thereafter to give evidence on behalf of the plaintiff. He was directed to bring with him and produce 'all notes, memoranda, records and reports of whatsoever nature made and received by the said person concerning the incident which occurred on 3rd September, 2008, the subject matter of these proceedings herein and all documents in connection with an article published in the edition of the Daily Star on 9th September, 2008, under the headline "Phone in Bra Jail Smuggler Busted"'.
The applicant has made application to the court through solicitor and counsel for two reliefs. First, he alleges that the court should set aside the subpoena directed to him requiring him to attend and bring documents to court and to give evidence at the trial. Secondly, he asserts a claim to what has been referred to as ' journalistic privilege', whereby he seeks a ruling from the court that he should not be required to reveal his confidential source or sources in relation to the article in question.
In relation to the application to set aside the subpoena, Mr. Lupton, B.L., on behalf of the applicant, referred the court to the decision in Cully v. Northern Bank Finance Corporation Limited [1984] ILRM 683, where O'Hanlon J. cited with approval the judgment of Scarman L.J. in Senior v. Holdsworth ex parte Independent Television News Limited [1976] Q.B. 23, where the learned judge stated as follows:-
'The law, as it now stands, does not enable the court to refuse to issue a witness summons (or subpoena) for the production of documents upon due application. The remedy available to the person served is to move to set the summons aside. Upon such an application the court will set it aside if what is sought is irrelevant, oppressive, an abuse of the process of the court or recognised by the law as being privileged from production. Further, even if the document sought be relevant and not otherwise privileged from production, the court has a residual discretion in certain circumstances to protect the document and set the summons aside.'
In the Cully case, O'Hanlon J. discharged the subpoena duces tecum because he came to the conclusion that if the witness was brought to court and required to give evidence and produce documents as required by the subpoena, it would involve him in a breach of the oath of secrecy which he was required by statute to take when he entered the service of the Central Bank. The judge held that the provisions of s. 31 of the Central Bank Act 1942, gave rise to a claim of privilege on grounds of public policy from disclosure of any information of the type referred to in the oath of secrecy.
The applicant also referred to the decision in Duncan v. Governor of Portlaoise Prison (No. 2) [1998] 1 I.R. 433, where the applicants had been convicted of various offences by the Special Criminal Court. It transpired that the orders made were invalid as one of the three judges comprising the court was, at the time of making the remand orders, no longer serving as a member of the court. Instructions were given that the applicants should be released and then be re-arrested. The applicants challenged the legality of their subsequent detention. The applicants issued a subpoena directed to the Attorney General. Counsel for the notice party applied to set aside the subpoena on the basis that there was no relevant evidence which the Attorney General could give which would not be protected by legal professional...
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Pat Carey v Independent News & Media Plc, Independent Newspapers (Ireland) Ltd, The Commissioner of an Garda Síochána, Ireland and The Attorney General
...letters rogatory issued by a US Court in commercial litigation in that jurisdiction. In Boyle v. Governor of St. Patrick's Institution [2015] IEHC 410, Barr J. was considering an application to set aside a subpoena duces tecum issued to a journalist and, although the subpoena was not set as......