Irish Times Ltd v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 18 February 1997
• Neutral Citation: [1997] IEHC 30
• Court: High Court
• Docket Number: No. 43 JR/1997
• Date: 18 February 1997

[1997] IEHC 30

THE HIGH COURT

No. 43 JR/1997

No. 45 JR/1997

No. 44 JR/1997

No. 50 JR/1997

IRISH TIMES LTD v. IRELAND & MURPHY

JUDICIAL REVIEW

BETWEEN

THE IRISH TIMES LIMITED, EXAMINER PUBLICATIONS (CORK) LIMITED, INDEPENDENT NEWSPAPERS IRELAND LIMITED AND NEWS GROUP NEWSPAPERS LIMITED AND RADIO TELEFIS EIREANN

APPLICANTS

AND

IRELAND AND THE ATTORNEY GENERAL AND HIS HONOUR JUDGE ANTHONY G MURPHY CIRCUIT COURT JUDGE OF THE CORK CIRCUIT CO CORK

RESPONDENTS

Citations:

DPP V MILLER & ORS UNREP CC 6.2.97

AG V LEVELLER MAGAZINE LTD 1979 1 AER 745

R V HORSHAM JUSTICES 1972 2 AER 269

CONSTITUTION ART 34

R LTD, IN RE 1989 IR 126

COMPANIES ACT 1963 S205

COMPANIES ACT 1963 S205(7)

DPP, PEOPLE V SHAW 1982 IR 1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.6.1(i)

D V DPP 1994 2 IR 465

DPP, PEOPLE V STAUNTON

Z V DPP 1994 2 IR 476

CONSTITUTION ART 34.1

Synopsis:

Constitutional Law

Judicial review; court order restricting right of applicants to report criminal trial while in progress; whether trial being "administered in public" under Article 34.1 of Constitution; whether judge entitled to make order; whether real risk of unfair trial; whether any damage caused by improper reporting could be remedied by trial judge Held: Trial not being "administered in public"; judge justified in reaching conclusion due to risk of unfair trial (High Court: Morris J. 18/02/1997)

The Irish Times Ltd. & Ors. v. Ireland, Attorney General & Judge Murphy - [1998] 1 IR 359 - [1997] 2 ILRM 541

1 Judgment of Mr. Justice Morris delivered on the 18th day of February, 1997.

2 This matter comes before the Court pursuant to an Order made on the 10th February, 1997 whereby the several Applicants were given leave to apply for an Order of Certiorari by way of Judicial Review in respect of an Order made in a prosecution in Cork Circuit Court entitled Director of Public Prosecutions -v- Howard Charles Miller, James Noel, Roman Smollen and Theresa Bernadette da Silva on the 6th February, 1997 which said Order restricted the right of the several Applicants to report the said proceedings. The Director of Public Prosecutions and the Accused in the prosecution were subsequently added as Notice Parties in these proceedings.

3 The facts from which this Application arises are contained in the following documents which are before the Court:-

4 (a) The facts set out in the statement grounding application for Judicial Review.

5 (b) The affidavit grounding the said Application and the exhibits therein referred to.

6 (c) The extempore judgment of Judge A. G. Murphy on Application being made to him on the 6th February, 1997.

7 (d) The affidavit of the County Registrar sworn on the 11th February, 1997.

8 (e) The transcript of the submissions made to the learned Circuit Judge on the 10th February, 1997.

9 (f) The additional affidavits filed on behalf of the Applicants in support of the Applications.

10 (g) A letter dated the 12th February, 1997 from Mr. John Brosnan, State Solicitor for Cork, S.E.R.

11 From these several documents the following facts emerge.

12 On the 6th February, 1997 the several Accused appeared before the Cork Circuit Court Indicted on two counts namely possession of cocaine for the sale or supply and secondly the unlawful importation of cocaine into the State. These offences were alleged to have been committed on the 29th September, 1996 in Cork Harbour when a converted trawler, the Sea Mist, was arrested by Customs Officers and members of the Gardai. On being arraigned one of the Accused then before the Court namely Gordan Richards, the skipper of the Sea Mist, pleaded guilty to the charge of possession of cocaine for sale or supply. He was put back for sentence to the end of the trial of the other four Accused. They pleaded not guilty on both counts in the indictment. At the commencement of the trial the learned Circuit Judge on his own Motion made an Order restricting the reporting of the proceedings. He subsequently clarified and confirmed this Order on 6th February, 1997. This is the Order that is being challenged in these proceedings.

13 The terms of the Order which were made by the learned Circuit Judge are therefore to be found in the Order (undated) signed by the County Registrar which was made on the 6th February, 1997 at approximately 5 o'clock. This Order provided:-

"That there should be no contemporaneous media reporting of the trial save for:-"

2 "(1) The fact that the trial is proceeding in open Court.

(2) The names and addresses of the Accused parties.

(3) The nature of the crimes alleged in the indictment.

(4) Where the trial is taking place.

(5) But not referring to the fact that the Accused are in custody.

(6) The fact that the captain of the vessel has pleaded guilty to the charge."

14 The issues that arises in this Application concerns firstly the powers, if any, which a trial Judge has to either prohibit or limit the reporting of a criminal trial which is proceeding before him and secondly, if he does have such powers, the manner in which they should be exercised.

15 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."

16 The first issue which the Court has to consider is whether the trial which has proceeded with this ban on contemporaneous reporting is one held "in public" in accordance with the Constitution.

17 The learned trial Judge in the course of his judgement on the 6th February, 1997 made the following observations:-

".....Now the ban on publication of this case was not to hold the trial in camera. The doors of the Court are open, the seats are available, the trial was held in public. The media can inform the public of the day to day minutiae of the trial and I consider the risk to the accused people and the risk to the trial having regard to what happened and having regard to what was happening I could see it was going to happen again, that the trial will be aborted and they will be back in custody for a considerable period..........the public of course must be informed that the trial is proceeding but I believe that there is in existence a judicial discretion, if the Judge is satisfied that interference is possible, that he may interfere with the immediate interests of the media. This is not a ban on reporting. It is not a ban on the public. This is a delay which cannot conceivable adversely affect the public interest and for the reasons stated I think it is quite justified. There is a ban on the publication of this case other than the names and addresses of the accused people and a statement of the crime."

18 ..... "Sorry, well it is easier if I state what the press may do. They may report that this trial is proceeding, the name and address of the accused parties, the nature of the crime as set out in the indictment and where it is happening but not refer to the fact that the accused are in custody."

19 The effect of the Order of the learned trial Judge was to impose a restriction on contemporaneous reporting of the case by the media other than as set out in his judgment the Order places no prohibition on full reporting after the case had been concluded.

20 It is submitted on behalf of the Respondents that notwithstanding the Circuit Judges Order the trial was being "administered in public" in accordance with Article 34.1 of the Constitution. This interpretation was not accepted by the Applicants.

21 I do not accept that a trial being held subject to the limitations on publication imposed by the learned trial Judge in this case is being held "in public". In the course of his speech in Attorney General -v- Leveller Magazine Limited 1979 1 AER 745, Lord Diplock makes the following observations:-

"As a general rule the English system of administrating justice does require that it be done in public (Scott -v- Scot) 1913 AC 417. If the way that Courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the Court itself it requires that they should be held in open Court to which the press and public are admitted and that, in criminal cases at any rate all evidence communicated to the Court is communicated publicly. As respects the publication to the wider public of fair and accurate reports of proceedings that have taken place in Court the principle requires that nothing should be done to discourage this."

22 I agree with this statement of Law as being appropriate in this jurisdiction also. In my view if one were to hold that proceedings in Court were "in public" while such a ban on publication by the media was in place then the reasoning which would support that conclusion would equally support the conclusion that a trial held in circumstances in which no member of the public was allowed to communicate to anyone outside of the Court what transpired in Court, would be equally valid. I do not think that any reasonable person could be satisfied that such a trial was being held in public.

23 Further authority for the proposition that freedom of publication by the media is an integral part of the administration of justice in public is to be found in R -v- Horsham Justices (1972) 2 AER 269.

24 If therefore restriction upon contemporaneous publication of proceedings by the media of Court proceedings constitutes an infringement of Article 34 in that the proceedings are not being held "in public" are there any circumstances in which such a restriction can be imposed?

25 In Re: R Limited 1989 IR page 126 at page 134the...