Irish Times Ltd v Ireland

• Jurisdiction: Ireland
• Judgment Date: 02 April 1998
• Date: 02 April 1998
• Docket Number: [1997 & 197, 93 & 195, 91 & 196 of 1997]
• Court: Supreme Court

High Court

Supreme Court

[1997 No. 43JR; S.C. Nos. 68 & 77, 92 & 197, 93 & 195, 91 & 196 of 1997]

Irish Times Ltd. v. Ireland

The Irish Times Limited, Examiner Publications (Cork) Limited, Independent Newspapers Ireland Limited, News Group Newspapers Limited and Radio Telefís Éireann éireann

Applicants

and

Ireland, The Attorney General and His Honour Judge Anthony G. Murphy, Circuit Court Judge of the Cork Circuit, County Cork

Respondents

The Director of Public Prosecutions and Howard Charles Millar, James Noel, Roman Smolen, Theresa Bernadette da Silva Roy, Notice Parties

Cases mentioned in this report:-

Ambard v. Attorney General for Trinidad and Tobago [1936] A.C. 322.

Att. Gen. v. Leveller Magazine [1979] A.C. 440; [1979] 2 W.L.R. 247; [1979] 1 All E.R. 745.

Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373.

Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597; [1987] I.L.R.M. 135.

Beamish & Crawford Ltd. v. Crowley [1969] I.R. 142.

Cullen v. Toibín [1984] I.L.R.M. 577.

D. v. Director of Public Prosecutions [1994] 2 I.R. 465.

Heaney v. Ireland [1997] 1 I.L.R.M. 117.

In re Hibernia National Review [1976] I.R. 388.

Irish Press v. Ingersoll Publications Ltd. [1993] I.L.R.M. 747.

Kearney v. Minister for Justice [1986] I.R. 116; [1987] I.L.R.M. 52.

Keegan v. de Burca [1973] I.R. 223.

The People v. Shaw [1982] I.R. 1.

In re R. Ltd. [1989] I.R. 126; [1989] I.L.R.M. 757.

R. v. Clement [1821] 4 B & Ald 218.

R. v. Gray (1865) 10 Cox C.C. 184.

R. v. Horsham J.J., Ex p. Farquharson [1982] Q.B. 762; [1982] 2 W.L.R. 430; [1982] 2 All E.R. 269.

R. v. McHugh [1901] 2 I.R. 569.

Scott v. Scott [1913] A.C. 417.

The State (D.P.P.) v. Walsh [1981] I.R. 412.

The State (Holland) v. Kennedy [1977] I.R. 193.

The State (Quinn) v. Ryan [1965] I.R. 70; (1963) 100 I.L.T.R. 105.

Z. v. Director of Public Prosecutions [1994] 2 I.R. 476; [1994] 2 I.L.R.M. 481.

Constitution - Courts - Administration of justice in public - Criminal trial - Order of trial judge imposing restrictions on reporting - Whether trial being held "in public" - Whether discretion to order trial otherwise than "in public" - Right of public to be informed of proceedings - Right of accused to have proceedings reported - Freedom of expression - Constitution of Ireland, 1937, Articles 34.1, 38.1 and 40.6.1 (i).

Constitution - Conflict of constitutional rights - Freedom of expression - Right to fair trial - Whether accused's right to fair trial prejudiced by contemporaneous reporting of proceedings - Order of trial judge imposing restrictions on reporting - Whether order made in excess of or without jurisdiction - Constitution of Ireland, 1937, Articles 34.1, 38.1 and 40.6.1 (i).

Criminal law - Trial - Trial judge imposing restrictions on contemporaneous reporting of proceedings - Power of trial judge to ensure trial conducted with fairness of procedures and in due course of law - Constitution of Ireland, 1937, Articles 34.1, 38.1 and 40.6.1 (i).

Judicial review.

On the 7th February, 1997, the applicants (not including Radio Telefís Éireann éireann) obtained ex parte in the High Court (Geoghegan J.) leave to apply by way of judicial review for orders of certiorari, setting aside the order of the third respondent of the 6th February, 1997, which imposed restrictions on contemporaneous reporting of certain criminal prosecutions in the Cork Circuit Criminal Court and declaratory relief. The application was grounded upon a statement of grounds dated the 7th February, 1997, and a grounding affidavit filed in court on the same date. The first notice party filed a statement of opposition to the application on the 13th February, 1997.

On the 10th February, 1997, the High Court (Kelly J.) granted an order in similar terms to Radio Telefís Éireann éireann.

Both applications were heard by the High Court (Morris J.) on the 13th and 14th February, 1997.

By notice of appeal lodged on the 24th February, 1997, the applicants appealed against the judgment and order of the High Court and the respondents appealed against such portion of the judgment as found that the trial before the learned Circuit Court Judge was not a trial being held in public within the meaning of Article 34.1 of the Constitution.

The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) on the 13th, 14th, 15th and 16th November, 1997.

On the 4th February, 1997, at the commencement of a number of related criminal prosecutions in the Cork Circuit Criminal Court, the third respondent made an order imposing certain restrictions on contemporaneous reporting of the trial by the applicants and other organs of the press. On the 6th February, 1997, the third respondent clarified and confirmed the initial order. The order placed no prohibition on full reporting after the trial had concluded.

The applicants applied by way of judicial review for an order of certiorari, quashing the order of the 6th February, 1997 and for declaratory relief. It was submitted on behalf of the applicants, inter alia, that, in making the order, the third respondent had acted without or in excess of his jurisdiction. It was also contended that the third respondent had failed to have regard to the right of the press to freedom of expression and the right of citizens to receive information.

Held by the High Court (Morris J.) in refusing the relief sought, 1, that the constitutional requirement that justice be administered in public had two aspects; namely, that proceedings be held in open court to which the press and public were admitted, and secondly, that nothing should be done to discourage the publication to the public of fair and accurate reports of the proceedings. Accordingly, the restriction on contemporaneous reporting of the proceedings by the media constituted an infringement of Article 34.1 of the Constitution, in that the proceedings were not being held"in public".

• Att. Gen. v. Leveller Magazine [1979] A.C. 440; R. v. Horsham J.J., Ex p. Farquarson[1982] Q.B. 762 followed.

2. That there was a hierarchy of constitutional rights and when a conflict arose between them, that which ranks higher must prevail. In the instant case, the trial judge balanced the accuseds' constitutional right to a fair trial in due course of law against the right of the media to freedom of expression and the right of the public to receive information.

In re R. Ltd. [1989] I.R. 126 considered; The People v. Shaw[1982] I.R. 1 applied.

3. That an accused's right to a fair trial was paramount and ranked higher in the hierarchy of rights than the right of the community to prosecute. The right to a fair trial included the right to a trial by a jury unprejudiced by pre-trial publicity.

• D. v. Director of Public Prosecutions [1994] 2 I.R. 465applied.

4. That once a trial judge recognised the existence of a superior constitutional right, then there was vested in him the power to take such measures as were necessary to protect that constitutional right and to ensure that the trial over which he was presiding was conducted in a fair manner and in accordance with the Constitution.

5. That before a trial judge presiding over a trial imposed a ban on reporting he must be satisfied (i) that there was a "real risk of an unfair trial" if contemporaneous reporting was permitted, and (ii) that th e damage which such improper reporting would cause could not be remedied by the trial judge by appropriate directions to the jury or otherwise.

6. That the instant case involved the largest seizure of cocaine in Ireland to that date; it was the first prosecution under new legislation and it had attracted significant media interest. In making the impugned order, the trial judge had been aware of a drug prosecution in Michaelmas, 1996, which had been aborted and the jury discharged following inaccurate media reporting; he was also aware of the interests of both the media and the accused. In all the circumstances the trial judge was entitled, on the evidence, to conclude that a restriction on contemporaneous reporting was necessary to protect the accused from risk.

7. That the obligation on the trial judge to ensure the fairness of a trial was irrespective of the wishes of either the prosecution or the accused.

The applicants appealed against the judgment and order of the High Court and the respondents appealed against such portion of the judgment as found that the trial before the Circuit Court Judge was not a trial being held in public within the meaning of Article 34.1 of the Constitution.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.), in allowing the applicants' appeal, 1, that it was a fundamental right in a democratic state and a fundamental principle of the administration of justice pursuant to Article 34.1 of the Constitution, for the people to have access to the courts to hear and see justice being done, save in a few limited exceptions. Any order restricting the contemporaneous reporting of legal proceedings by the press must be viewed as a curtailment of the access of the people to the administration of justice. Accordingly, any trial held in such circumstances was not a trial being held "in public" within the meaning of Article 34.1.

In re R. Ltd. [1989] I.R. 126considered.

2. That a literal interpretation of Article 34.1 of the Constitution did not admit of a discretion to order a trial otherwise than in public. Nevertheless, the exercise of the rights conferred by Article 34.1 can be limited, not only by Acts of the Oireachtas, but also by the courts where it was necessary in order to protect an accused person's constitutional right to a fair trial, which right was superior to any rights arising from the provisions of Article 34.1.

• D. v. Director of Public Prosecutions [1994] 2 I.R. 465 andZ. v. Director of Public Prosecutions[1994] 2 I.R. 476considered.

Per Denham J.: In...