Gilchrist v Sunday Newspapers Ltd
 IESC 18
O'Donnell Donal J.
O'Donnell Donal J.
Appeal No. 123/2016 & 122/2016
Court of Appeal Record No. 310/ 20016, & 309 2016
High Court Record No. 2013/11584P & 2013/11583P
Defamation – In camera – Public hearing – Notice party seeking to be joined to the proceedings and for the proceedings to be heardin camera – Whether the trialmustbe conducted fully in public
Facts: Mr Mooney entered the Witness Protection Programme in 2003. At some stage Mr Mooney became unhappy with the programme and initiated proceedings against the notice party/respondent, the Commissioner of An Garda Siochána, contending that he had an agreement for a different form of relocation and protection than was being provided. The High Court (Gilligan J) held that the hearing of Mr Mooney's proceedings against the Commissioner should proceedin camera. Gilligan J dismissed Mr Mooney's claim. Some time prior to the High Court hearing in Mr Mooney's case, he had been in contact with a journalist from the Sunday World Newspaper, the defendants/appellants. The newspaper published articles that made allegations about a former detective who had been running the programme and in particular had been dealing with Mr Mooney, and a psychotherapist who had provided assistance to the programme, the plaintiffs/respondents. The plaintiffs contended that the articles, in addition to disclosing and publicising their identity, contained matters which were seriously defamatory of them. The Commissioner brought an application to be joined to the proceedings and for the proceedings to be heardin camera. The High Court judge case managing the case (MacEochaidh J) made orders for a joinder of the Garda Commissioner, and then made limited orders restricting access and delaying reporting of the case but did not order a fullin camerahearing. Both the Commissioner and the newspapers were dissatisfied with this ruling, and agreed that these arrangements were unworkable and should be appealed, but the parties differed as to the appropriate order to be made. The plaintiffs' attitude for their part had been that their principal interest was in securing an early hearing. However they came to support the Commissioner's application, largely on a pragmatic basis that otherwise they foresaw considerable difficulties if the Commissioner maintained her contention that evidence about the operation of the programme was official information, and that therefore disclosure of it without permission would be an offence under the Official Secrets Act 1963. The Commissioner also indicated that she was willing to look more favourably on permission if the hearing wasin camera. The argument on principle was largely conducted between the Commissioner and the newspaper. The Court of Appeal unanimously allowed the Commissioner's appeal and directed that the trial should proceedin camera. Ryan P considered that the Supreme Court decision inIrish Times v Ireland 1 IR 359 had significantly qualified earlier jurisprudence and in particular the decision of the Supreme CourtIn re R Ltd  IR 126. The appellants appealed to the Supreme Court from that Court of Appeal decision.
Held by O'Donnell J that the net issue presented for determination by the Court could be reduced to the question of whether the trialmustbe conducted fully in public, or whetheranydeparture from that principle may be permitted. In O'Donnell J's view, the public interest in the functioning of the Witness Protection Programme and the consequent protection of the lives of participants in it and officers and staff mean that the court's power to control its own powers must extend to departing from a hearing in public at least to some extent. While O'Donnell J sought to analyse this in terms of Article 34.1 of the Constitution, the Court held that the same result could, and in most if not all cases would, be arrived at by application of the language ofIn re R Ltdor Irish Times v Ireland.
O'Donnell J held that on the single issue of principle raised on appeal, the Court would dismiss the newspaper's appeal and would uphold the order of the Court of Appeal, but on substantially different and narrower grounds. O'Donnell J held that it remained open to the parties to address the trial court on these matters in the light of the development of the case. O'Donnell J therefore affirmed the order of the Court of Appeal that the trial may be heard otherwise than in public, with liberty to the parties and any other media organisation to apply to the trial judge to limit or vary that order either in general, or in relation to specific issues or aspects of the case. The Court directed that the appeal be heard in public.
Article 34.1 of the Constitution provides:
'Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.'
In their carefully constructed submissions, counsel for the appellants (which for ease of reference I will describe as 'the newspaper') laid stress on the observations of Keane J. (as he then was) in :
'Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly or inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. Such a society could not tolerate the huge void that would be left if the public had to rely on what might be seen or heard by casual observers, rather than on a detailed daily commentary by press, radio and television. The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy.'
This is a sentiment of great antiquity. It contains echoes of the famous case of , where Lord Shaw of Dunfermline made a memorable defence of the principle of open justice. At page 477, he cited the following passage from Jeremy Bentham:
'In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.'
Lord Shaw remarked that Bentham was moved 'over and over again' about the importance of publicity in the administration of justice, and cited another of Bentham's observations on the subject:
'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' (p.477)
Lord Shaw also referred to the works of Hallam who ranked the publicity of judicial proceedings even higher than the rights of parliament:
'Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.'
In their submissions, counsel touched rather delicately on the observations of Keane J. on corruption and abuse of power by the judiciary, observing that these were shocking and unlikely events. While I appreciate the diffidence of the approach, I do not think that any such restraint is necessary. We live in a system of checks and balances. The requirement of a hearing in public is a check upon the power which can be exercised by judges. That check is not necessary simply to protect against unlikely examples of corruption, ill will or prejudice, but also because to paraphrase Brandeis J. in , rights are also at risk from decisions of persons of goodwill convinced that they are correct and offended by high-handed behaviour or understandably suspicious of the motivation of a party: 'the greatest danger to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.' It is a core component of the separation of powers that the judiciary must ensure that no other branch of government exceeds the constitutional limits of its authority. A function of the judicial power is therefore to determine its own scope and boundaries in particular cases. It is important that the judiciary should be particularly astute to respect and enforce the limitations and constraints upon the exercise of the judicial power.
However, this case cannot be resolved by merely invoking a general statement of unbending principle. Every statement of the importance of open justice, of which Article 34.1 of the Irish Constitution is one powerful example, recognises that it is not an absolute principle, and it may be subject to exceptions. This case raises difficult questions in relation to the identification of...
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