Melton Enterprises Ltd v Censorship of Publications Board

JurisdictionIreland
CourtSupreme Court
JudgeKeane C.J.
Judgment Date04 November 2003
Neutral Citation[2003] IESC 55
Date04 November 2003
Docket Number[S.C. No. 130 of 2003]

[2003] IESC 55

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

M cGuinness J.

Hardiman J.

130/03
MELTON ENTERPRISES LTD v. CENSORSHIP OF PUBLICATIONS BOARD & ORS

BETWEEN

MELTON ENTERPRISES LIMITED
APPLICANTS/APPELLANTS

AND

THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

HAUGHEY, RE 1971 IR 217

KIELY V MIN SOCIAL WELFARE (NO 2) 1977 IR 276

GALLAGHER V REVENUE CMSRS 1995 1 ILRM 241

RYAN V VIP COOPERATIVE SOCIETY LTD UNREP LARDNER 10.1.1989 (EX TEMPORE)

FLANAGAN V UCD 1988 IR 724

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN TRANSPORT 1997 1 ILRM 241

CENSORSHIP OF PUBLICATIONS REGS 1980 SI 292/1980 ART 5

CENSORSHIP OF PUBLICATIONS ACT 1946 S20

HEALY, STATE V DONOHUE 1976 IR 325

DONNELLY V IRELAND 1998 1 IR 321

CENSORSHIP OF PUBLICATIONS ACT 1929

CENSORSHIP OF PUBLICATIONS REGS 1980 SI 292/1980 ART 5(B)

IRISH FAMILY PLANNING V RYAN 1978 IR 313

CENSORSHIP OF PUBLICATIONS ACT 1946 S2

CENSORSHIP OF PUBLICATIONS ACT 1946 S9

CENSORSHIP OF PUBLICATIONS ACT 1946 S7

HEALTH (FAMILY PLANNING) ACT 1979

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) ACT 1995

CONSTITUTION ART 34.1

CENSORSHIP OF PUBLICATIONS ACT 1946 S2(1)

CENSORSHIP OF PUBLICATIONS ACT 1946 S3

CENSORSHIP OF PUBLICATIONS ACT 1946 S6

CENSORSHIP OF PUBLICATIONS ACT 1946 S7

CENSORSHIP OF PUBLICATIONS ACT 1946 S8

CENSORSHIP OF PUBLICATIONS ACT 1946 S9(1)

CENSORSHIP OF PUBLICATIONS ACT 1946 S9(3)

CENSORSHIP OF PUBLICATIONS ACT 1946 S10

CENSORSHIP OF PUBLICATIONS ACT 1946 S11

CENSORSHIP OF PUBLICATIONS ACT 1946 S14

CENSORSHIP OF PUBLICATIONS ACT 1946 S16

CENSORSHIP OF PUBLICATIONS ACT 1946 S16(9)

CENSORSHIP OF PUBLICATIONS ACT 1946 S1

CONSTITUTION ART 37

CONSTITUTION ART 40.6.1(1)

KEADY V GARDA CMSR 1992 2 IR 197

SOLICITORS ACT 1954, RE 1960 IR 239

MURRAY, STATE V MCRANN 1979 IR 133

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, RE 1940 IR 470

EAST DONEGAL CO-OP V AG 1970 IR 317

MCDONALD V BORD NA GCON 1965 IR 217

R V HICKLIN 1868 LR 3 QB 360

CENSORSHIP OF PUBLICATIONS ACT 1946 S19

IRISH FAMILY PLANNING V RYAN 1979 IR 295

Synopsis:

CENSORSHIP

Constitutional law

Validity of statute - Whether judicial powers and functions of Censorship of Publications Board limited - Whether judicial powers conferred on Board constitutional - Censorship of Publications Act 1946, section 9 - Bunreacht na hÉireann, Article 37.1 (130/2003 - Supreme Court - 4/11/2003)

Melton Enterprises v The Censorhip of Publication Board - [2003] 3 IR 623 - [2004] 1 ILRM 260

JUDICIAL REVIEW

Fair procedures

Natural and constitutional justice - Censorship of periodicals - Censorship mechanism initiated by complaint to Board - Whether adoption by Board of policy of not disclosing identity of complainant to publishers contrary to natural justice and constitutes unfair procedure (130/2003 - Supreme Court - 4/11/2003)

Melton Enterprises v The Censorhip of Publication Board - [2003] 3 IR 623 - [2004] 1 ILRM 260

1

JUDGMENT delivered the 4th November 2003 by Keane C.J.

2

The factual background to these proceedings has been set out in the judgment of the court on the constitutional issue.

3

The appellants submitted that, if, contrary to their submissions on the constitutional issue, the provisions of the Act were constitutionally valid, the Board were obliged to disclose to the appellants the identity of the complainants. Mr. Gordon, on behalf of the appellants, submitted that, unless their identity was disclosed, it would not be possible to determine whether the complainants were cranks, business competitors or persons acting for some other ulterior motive and not making complaints in good faith.

4

Mr. Gordon submitted that natural justice and constitutional justice required that a person against whom a complaint of a serious nature had been made should know who his accuser was. The requirements of fair procedures would not be met if one person was entitled to make a case against another without his identity being disclosed, thus enabling the accused person to test the bona fides of the complainant. He cited in support the decisions of this court in Re. Haughey [1971] I.R. 217, Kiely -v- The Minister for Social Welfare (No. 2) [1977] I.R. 276 and Gallagher -v- The Revenue Commissioners [1995] 1 I.L.R.M. 241 and of the High Court in Ryan -v- V.I.P. Cooperative Society Limited (Lardner J.; unreported; judgment delivered 10 th January, 1989) and Flanagan -v- U.C.D. [1988] I.R. 724.

5

Mr. Gordon further submitted that the Board were not entitled to adopt an inflexible policy of declining in every case to disclose the identity of complainants. It is clear, he said, that they could not legitimately fetter their discretion in that way, citing in support Carrigaline Community Television Broadcasting Company Ltd -v- Minister for Transport, Energy and Communications [1997] 1 I.L.R.M. 241.

6

On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board's procedures fully complied with the requirements of natural justice and fair procedures. The appellants had been furnished with all the material contained in the complaints, other than the identity of the complainants, and the Board had invited the appellants to make whatever representations they considered appropriate before the Board reached any determination of the matter. The audi alteram partemrule had thus been fully complied with: the complainants were not in the position of accusers and the appellants did not enjoy the right to cross-examine them, the circumstances being entirely different from those considered by this court in Re. Haughey.

7

Mr. Cross further submitted that it was for members of the Board, and them alone, to form an opinion as the whether the publication complained of was indecent or obscene or had devoted an unduly large proportion of space in the publication to matter relating to crime. The identity of the complainants was, accordingly, wholly irrelevant: the Board were required to arrive at their determination without having any regard to the identity of the complainants.

8

Mr. Cross further submitted that the Board's policy of non-disclosure of the identity of the complainant did not amount to an unlawful abandonment of its discretion. It was accepted that it had such a discretion, but its stated policy was to ensure that members of the public came forward to make complaints and, as a result, not to disclose their identity. At the same time the policy was not operated so rigidly as to apply in all circumstances, since the Board would seek the consent of the complainant to his or her identity being disclosed as had happened in this case.

9

Article 5 of the Censorship of Publications Regulations, 1980 (S.I. No. 292 of 1980) made by the Minister for Justice in exercise of the powers conferred on him by s. 20 of the 1946 Act, provides that

"A complaint made under s. 9 of the Act in respect of a periodical publication shall"

(a) be in writing,

(b) state the reason why the complainant considers that the sale and distribution in the State of the issues of the publication which are the subject of the complaint and of future issues of the publication should be prohibited,

(c) indicate the passages (if any) in the issues of the publication accompanying the complaint upon which the complainant places particular reliance in support of his complaint, and

(d) be accompanied by a copy of each of not less than three recent issues of the periodical publication."

10

It was accepted in the course of the arguments in this court that the regulations could not have envisaged the making of a complaint by a person or body who insisted on remaining anonymous. The sole issue was as to whether the adoption by the Board of a policy of not disclosing the identity of the complainant to the publishers was contrary to natural justice and constituted an unfair procedure.

11

It is beyond argument that a person accused of a criminal offence has a constitutional right to test by cross-examination the evidence offered by or on behalf of his accuser: see the judgments of the High Court and this court in The State (Healy) -v- Donohue [1976] I.R. 325 and Donnelly -v- Ireland [1998] 1 I.R. 321.It is also clear that where, as in Re. Haughey, in the case of a tribunal other than a court, the conduct complained of, if it resulted in a conviction by a count of competent jurisdiction, would amount to a criminal offence, the person who is the subject of the complaint is entitled to test by examination the evidence relied on in support of the complaint. Similarly, in the case of a tribunal established pursuant to statute or to a contract whose findings determine the legal rights of parties, the parties have the right to test the evidence on which the tribunal proposes to rely in reaching its determination by examination or, at the least, where there is no oral hearing, to be furnished with the witness statements or other material furnished to the tribunal by the opposing party.

12

Thus, in Kiely -v- The Minister for Social Welfare (No. 2), a person claiming to be entitled to a particular social welfare benefit was held to have been deprived of natural justice where an oral hearing was held by the tribunal, but the medical evidence on behalf of the relevant Minister was in written form only. Similarly, in Ryan -v- V.I.P. Cooperative Society Ltd, it was held that the taxi driver who was the subject of complaints to the defendant's society of which he was a member was entitled to be furnished with the names and addresses of the persons who had made the complaints and details of the allegations which had been made. Again, in Gallagher -v- The Revenue Commissioners & Ors, a customs and excise officer against whom complaints had been made that he had...

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