Independent Newspapers (Ireland) Ltd v Anderson

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 15 February 2006
• Neutral Citation: [2006] IEHC 62
• Court: High Court
• Docket Number: [2003 No. 974 JR]
• Date: 15 February 2006

[2006] IEHC 62

THE HIGH COURT

[No. 974 JR/2003]

INDEPENDENT NEWSPAPERS (IRELAND) LTD & ORS v JUDGE ANDERSON

BETWEEN

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, EXAMINER PUBLICATIONS (CORK) LIMITED, RADIO TELIFIS ÉIREANN AND THE IRISH TIMES

APPLICANTS

AND

JUDGE DAVID ANDERSON

RESPONDENT

AND

JOSEPH CONDELL

FIRST NAMED NOTICE PARTY

AND

(BY ORDER OF THE COURT) THE DIRECTOR OF PUBLIC PROSECUTIONS

SECOND NAMED NOTICE PARTY

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998

IRISH TIMES v MURPHY 1998 1 IR 359 1997 2 ILRM 541

CONSTITUTION ART 34.1

R LTD, IN RE 1989 IR 126

R v GRAY 1865 10 COX CC 184

COMPANIES ACT 1963 S205

IRISH PRESS PLC v INGERSOLL IRISH PUBLICATION LTD 1994 1 IR 176

SALINAS DE GORTARI v SMITHWICK 1999 4 IR 223

ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491

LYNCH, STATE v BALLAGH 1986 IR 203

GLAVIN v GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

CONSTITUTION ART 40.3.2

INDEPENDENT STAR LTD v O'CONNOR & ORS 2002 4 IR 166

KENNELLY v CRONIN 2002 4 IR 292 2003 1 ILRM 505

CONSTITUTIONAL LAW

Courts

COURTS

District Court

Administration of justice in public - Criminal proceedings - Order restricting publication of name of accused - When orders restricting reporting of proceedings in court can be made- Where no express legislative provision -Where real risk of unfair trial and damage not capable of being remedied by trial judge -Principles applicable - Proportionality - State(Lynch) v Ballagh [1986] IR 203, Glavin v Governor of Mountjoy Prison [1991] 2 IR421, In re Ansbacher (Caymen) Ltd [2002] 2 IR 517 and Irish Times Ltd v Ireland [1998] 1 IR 359 applied; Kelly v Cronin [2002] 4 IR 292 considered - Constitution of Ireland 1937, Article 34.1 - Certiorari granted (2003/974JR - Clarke J - 15/2/2006) [2006] IEHC 62, [2006] 3 IR 341 Independent Newspapers (Ireland) Ltd v Judge Anderson

Facts: A restriction on publication of the identity of first named notice party had been ordered by the respondent upon his remand on bail. The applicants sought to quash the restrictions alleging that the order as made did not comply with the Irish Times Ltd. decision and was in breach of their rights pursuant to Article 34.1 of the Constitution.

Held by Clarke J. that no assumption could arise here from a limited amount of pre-charge publicity that general adverse post charge publicity would take place. The order as made did not comply with the Irish Times Ltd. principles and did not comply with the doctrine of proportionality.

Reporter: E.F.

1. Introduction

2 2 1.1 These proceedings relate to an order made by the respondent District Judge in the course of a criminal prosecution brought by and on behalf of the second named notice party ("The Director"). In those criminal proceedings the first named notice party is charged with the possession of images of child pornography contrary to the Child Trafficking and Pornography Act 1998.

3 3 1.2 On 4th July, 2003, when the case was first brought before the respondent District Judge, the first named notice party was remanded on bail and the District Judge further ordered that no publication of the identity of the first named notice party was to be made by the media and further that no information tending to identify the first named notice party was to be published by the media ("the restrictive orders").

4 4 1.3 Subsequent to the making of the restrictive orders a hearing was arranged whereby submissions on behalf of the applicants could be made to the respondent District Judge seeking that the restrictive orders should be discharged. That hearing took place on 12th September, 2003. The respondent District Judge reserved his decision until 8th October, 2003 and on that date refused to vary his orders for the reasons set out in a transcript of his decision on that date ("the discharge refusal").

5 5 1.4 The applicants are major publishers in the print and broadcast media and had joined together for the purposes of making the application to discharge to which I have referred. The applicants bring these proceedings before this court for the purposes of seeking an order quashing the restrictive orders of the respondent District Judge together with certain alternative orders to the like effect. Leave to seek judicial review was given by this court (O'Neill J.) on the 15th December, 2003. The first named notice party opposed the application. The Director adopted a neutral position.

2. The Facts

2 2 2.1 The first named notice party is a clergyman in the Church of Ireland. It would appear that in January 2002 his home and the church in which he worked were searched and a certain amount of material, principally computer equipment, was seized. A number of articles appeared in the media between that time and July 2003 when the first named notice party was charged with the offences to which I have referred. Articles appeared in the Star newspaper on 26th January, 2002 and 26th June, 2003. Furthermore articles appeared in the Phoenix magazine on 1st February, 2002 and 21st June, 2002. The articles concerned intimated that charges of the type ultimately brought were to be brought against an unnamed person. However details are given which would at least go some way towards identifying the first named notice party as the individual intended to be charged or, at a minimum, identifying the person to be charged as being one of a small group of persons of whom the first named notice party was one. In addition one of the articles in the Star newspaper appears to suggest that other charges involving indecent assault were to be brought against the same unnamed individual. No such charges have, in fact, been brought.

3 3 2.2 On 4th July, 2003 when the proceedings against the first named notice party were first before the District Court sitting in Portlaoise it would appear that there was a very significant media presence. It is contended by the first named notice party that at least some members of the media in attendance acted in a hostile and aggressive manner.

4 4 2.3 In all those circumstances it is said that the first named notice party feared that he would be the subject of grossly prejudicial, unfair and inaccurate media reporting from that time onwards. In those circumstances an application was made by counsel on behalf of the first named notice party to the respondent District Judge based upon the reporting which had taken place prior to the bringing of the charges and to which I have referred above.

5 5 2.4 While there was, in the course of the exchange of affidavits in these proceedings, some slight confusion as to the role played by the State Solicitor acting on behalf of the prosecution on the occasion in question, it is now clear, and I am satisfied, that that State Solicitor concerned confined himself to assisting the respondent District Judge by informing him of the principles applicable to the making of restrictive orders and, in particular, accurately informed the respondent District Judge that there was a jurisdiction to make such an order provided that the District Judge was satisfied that it was necessary to ensure a fair trial.

6 6 2.5 On the basis of the evidence before me I am also satisfied that the respondent District Judge expressed himself, on the 4th July, 2003, as being satisfied that it was necessary to make the orders sought in order to ensure a fair trial. He then proceeded to make the restrictive orders.

7 7 2.6 As pointed out above an application was then made on behalf of the applicants to discharge the restrictive orders which application was ruled on, on 8th October, 2003. From the transcript of that ruling it appears that, on that occasion, the respondent District Judge decided that:-

1 The proceedings on 4th July, 2003 did not amount to a trial process and that, accordingly, the principles set out by the Supreme Court in The Irish Times Limited and Others v. Ireland [1998] 1 I.R. 359 did not apply;

2 The first named notice party had a right to fair procedures, a right to face his accuser, a right to know the case made against him and the right to a good name, and these would be threatened if his identity or information tending to disclose his identity was published; and

3 The restrictive orders of the respondent District Judge of 4th July, 2003 were final orders and thus were not subject to being varied by the respondent District Judge other than within the confines of the same sitting of the District Court on 4th July, 2003.

In the light of those facts it is necessary to consider the legal principles applicable.

3. The Legal Principles

2 2 3.1 Article 34.1 of Bunreacht na hÉireann provides that:-

"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".

3 3 3.2 In Re R Limited [1989] I.R. 126 the Supreme Court took the view that the provisions of Article 34.1 required that justice must be administered in public save where there was an express legislative exception to that rule. The judgment went on to note that any such express legislative exception should be strictly construed. In particular where the legislative prohibition was not absolute, but conferred a discretion on the court, that discretion should be only exercised where it could be shown:-

"That a public hearing of the whole or of that part of the proceedings which it is sought to have heard otherwise than in a public court, would fall short of doing justice".

4 4 3.3 However in Irish Times Limited the Supreme Court recognised that, in addition to those cases which were covered by an express statutory provision, there were certain other limited circumstances where a court had a discretion to limit contemporaneous press reporting of a trial.

In the course of...