Sunday Newspapers Limited & ors -v- Gilchrist and Rogers,  IESC 18 (2017)
|Docket Number:||122/16 & 123/16|
|Party Name:||Sunday Newspapers Limited & ors, Gilchrist and Rogers|
Appeal No. 123/2016 & 122/2016
Court of Appeal Record No. 310/ 20016, & 309 2016
High Court Record No. 2013/11584P & 2013/11583P
Patrick Benedict GilchristPlaintiff/RespondentAND
Isabel Rogers Plaintiff/Respondent
Sunday Newspapers Limited, Colm MacGinty, and
The Commissioner of An Garda SíochánaNotice Party/Respondent
Judgment of O’Donnell J. delivered the 23rd of March 2017
1 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 Irish Times v. Ireland  1 I.R. 359 at p.409:
“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 Scott v. Scott  A.C. 417, 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.”
2 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 Olmstead v. US (1928) U.S. 433 at p.479, 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.
3 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 such exceptions, the justification for them, and the manner in which such matters should be determined.
4 The circumstances of these cases are extreme, and quite possibly unique. Ireland, like many other countries now operates a witness protection scheme referred to as a witness security programme. This was initiated on an ad hoc basis in the aftermath of the crisis generated by the assassination of the well-known journalist Veronica Guerin. While the scheme is operated on an administrative basis by An Garda Síochána, its existence is recognised by s.40 of the Criminal Justice Act 1999, which makes it a criminal offence to seek or take steps to seek information about the new identity or the whereabouts of a relocated witness, or to disclose such information. I think it can be said that there are two essential features for any functioning witness protection programme: first, it requires a high level of secrecy, and that secrecy and the existence of the programme itself are necessitated by real threats to the lives of persons who give evidence in certain cases. If witnesses to serious crimes cannot be assured that their lives will be protected, even at the cost of a change of identity and relocation, then there would be real damage done to the administration of justice. Thus, a witness protection scheme is necessary. Justice cannot be done without evidence from witnesses. However since confidentiality, indeed secrecy, is a necessary feature of any witness protection programme, issues may arise when persons in, or connected to the programme, are involved in litigation.
5 The origin of these cases is to be found in circumstances in which an individual, Mr. David Mooney, entered the Witness Protection Programme in 2003. Unusually he was not an accomplice or a member of an organisation giving evidence against former associates. Rather the witness was a person who together with others had the temerity to open a nightclub. He was approached by two individuals demanding protection money on behalf of the IRA in order to it was said to support prisoners’ wives. He was told that if he did not do so, the premises would be destroyed and his business would never be let get off the ground. Admirably, Mr. Mooney was prepared to go the Garda Síochána. The individuals concerned were arrested and prosecuted in the Special Criminal Court and convicted. Their appeals against conviction were dismissed. It is said that this was the first conviction of its type for offences of organised intimidation and extortion. Mr. Mooney was admitted to the Witness Protection Programme. The trial itself occurred in open court and he gave evidence and says that he was questioned about the operation of the programme.
6 At some stage Mr. Mooney became unhappy with the programme and initiated proceedings against the Commissioner of An Garda Síochána contending that he had an agreement for a different form of relocation and protection than was being provided. In those proceedings he was represented by the same solicitor and counsel who now act for the newspaper appellants in this case, and there is obviously a considerable degree of cooperation between them. In Mooney v. The Commissioner of An Garda Síochána & ors  3 I.R. 189, the High Court (Gilligan J.) held that the hearing of Mr. Mooney’s proceedings against the Commissioner should proceed in camera. He accepted the argument on behalf of the Commissioner that it would not be possible to mount a proper defence to the proceedings otherwise, since it would involve the disclosure of the identity of persons who could then become a target for subversive elements. Accordingly, the hearing proceeded in camera. A judgment was delivered on the 15th March, 2016, (Gilligan J.) which was published in a heavily redacted form. Gilligan J. dismissed Mr. Mooney’s claim. We have been told that that decision is under appeal.
7 It appears that 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 appellants herein. It is not clear how, or by whom, contact between the journalist and Mr. Mooney was initiated. On June 9th, 2003, the newspaper published a two page article under a heading “Witless Protection Programme”. It referred to proceedings (which were clearly Mr Mooney’s proceedings then pending) as a “landmark case set to expose the ‘shambles’ at the heart of a secret Garda unit”. Central to the article were allegations made 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. These were the plaintiffs in this case. It was suggested that they had misrepresented the qualification and status of the second plaintiff and enjoyed luxurious travel and accommodation and had engaged in an affair while the first plaintiff was married. The article not only identified them by name, but also published large photographs of them. The...
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