High Court 

In re Article 44 of the Constitution & In re Baby A (An Infant) Habeas Corpus; Eastern Health Board v A and Another

1999/1405 SS 

2 September 1999 

MCGUINNESS J: 

In this matter, following a very full hearing, judgment was given by Laffoy J in this Court on the 16 August 1999. On the 26 August 1999 Laffoy J permitted the circulation of an edited version of her judgment designed to protect the identity in particular of the Third Named Respondent and her child and another mother and young child who were mentioned in the course of the proceedings. Ms Justice Laffoy on 26 August 1999 also made a comprehensive Order prohibiting the publication without leave of the Court of any information in relation to the proceedings or the evidence adduced thereon and any information touching or concerning the care and welfare of baby A or baby B, save in the terms of the approved judgment. 

Following an application by the Irish Times newspaper made to this Court on Tuesday 31 August 1999 I permitted the publication by that newspaper of the name of the counselling agency involved in the proceedings. This Order was made in the context that the name of the agency together with other information had already been published by Independent Newspapers Limited. This publication is the subject of other proceedings which fall to be decided at a later stage. I enlarged upon my reasons for permitting the publication of the name of the agency in an extempore ruling made on the 31 August 1999. 

Today Radio Telefis Eireann and by extension other representatives of the media, including the Irish Times and Independent Newspapers, have applied for an extension of this Order permitting the publication of the name of both the general practitioner and the Barrister who were involved as witnesses in the case, and to whom reference is made in the judgment of Laffoy J. The matter was argued extensively before me. Since the matter was an urgent one and it was not in the interests of the infants and mothers concerned that continuing Court proceedings with continuing attendant publicity should go on from day to day I decided to make an immediate ruling in the matter which I do after this short adjournment. I thank Counsel for their helpful submissions in the matter. 

I am conscious that this application raises serious questions of constitutional rights, their balancing and their priority, as did the application by the Irish Times two days ago. Reference has been made to the right of freedom of expression and the right to have justice done in public in terms of Article 34.1 of the Constitution. The Eastern Health Board stresses that the infant children have to have their welfare protected. This case, which was carefully and at length heard by Laffoy J, concerned the welfare of two infant children and Mr McEnroy Counsel for the Eastern Health Board is right in saying that the Court must not lose sight of the fact that the case is essentially about the children. As such it was heard in camera, and as such Laffoy J made the Order which she did on the 26 August limiting the information in the public domain to the approved judgment. She as the trial Judge felt that the evidence and information contained in the approved judgment should be made public because that publication was truly in the public interest. Equally she limited the evidence and information to be published in the interest of the welfare of the children and by extension their mothers. She most certainly had the power and jurisdiction under the Constitution to limit the information to be published in this way see the judgment of O'Flaherty J in F v The Superintendent of Ballymun Garda Station and the judgment of the Supreme Court in particular the judgment of the Chief Justice in DG v Eastern Health Board. 

As I was not the trial Judge and my knowledge of the matter is limited I have at all times been reluctant to interfere with the Order of Laffoy J except where, as in the case of the name of the agency, I was convinced that it was in the public interest to do so. I am very conscious of the fact that as one or two pieces of information become public property, a type of drip-feed of other pieces of information tends to happen. That, I think, was the type of thing that Laffoy J meant when she used the term "slippage". This can happen without any deliberate attempt by members of the media to commit a contempt of Court. 

I am conscious of the importance of the view of the Eastern Health Board which was stressed by Mr Keane on behalf of RTE. Nevertheless I cannot be bound by it. I have to take all factors into consideration and to make my own decision. 

As I stated on Tuesday I find the analysis of the question of publishing certain in camera matters which was given by Barr J in his judgment in Eastern Health Board v Fitness Practice Committee [1998] 3 IR 399 both impressive and convincing. He was, however, not dealing with the case of publishing matters widespread in the media but of the transfer of documents from the Eastern Health Board to the Fitness Practice Committee of the Medical Council and he did this at least in part in the interests of the children who had been involved in the matters under investigation. 

As I have said I decided on Tuesday that it was in the public interest to allow the publication of the name of the agency. Today I am asked to extend that Order to permit the naming firstly of the general practitioner and secondly of the Barrister involved in the matter. It appears from the oral applications made to me in the Court, though not from the affidavit sworn by Mr Edward Mulhall of RTE, that both RTE and the other parties now also seek the publication of the names of the First and Second Named Respondents -- or at any rate the proprietors of the agency. It seems to me that if identifying information in regard to individuals as opposed to the agency as such is made public it is in the nature of media coverage and the competition between the various branches of the media that efforts will be made to interview these individuals and to publish either interviews with them or refusal to give interviews. Attempts may also be made to photograph them or perhaps even members of their families. 

Even in the print media, where there is some delay and control on what is printed this can lead to the inadvertent disclosure or disclosure by implication of further information from the in-camera hearing which could tend to lead to the identification of the children and mothers involved. This is probably even more true of radio and television where live interviews may be involved and persons may make statements which the interviewer cannot control in time, or at all. There are also the programmes generally known as "phone-ins" where despite certain methods of control persons may telephone the programme and make statements before the information given can be stopped. I am aware that RTE have indicated the willingness to undertake not to broadcast live interviews but given the whole nature of television and radio and in particular of these phone-in programmes I fear that there is a real danger of additional information being allowed to come into the public domain. I cannot be the only person who has experienced hearing programme chairman or interviewers in RTE making hasty efforts to recover from what may be defamatory statements by persons appearing on their programmes. I am aware of the systems of control but it does not appear to me that they are perfect. 

Counsel for RTE and by extension the other Counsel making application stated that it is in the public interest that the general practitioner and the Banister be named and that this may serve to protect other pregnant girls. I do not see why this should be so. It is clear from the approved judgment of Laffoy J that the mothers concerned in the case made contact with or were contacted by the general practitioner and the Barrister only through the medium of the agency; there is it seems to me no particular danger that other pregnant girls in a crisis situation will make direct contact with these particular individuals. It seems to me that the revelation of the individual names is more a matter of public curiosity than of public interest in the true sense. 

One of the reasons which led me to permit publication of the name of the agency was precisely so that other pregnant women seeking counselling would have this information available to them. Another reason was to protect other counselling agencies who not unnaturally felt that their names might be under a cloud. 

Neither of these reasons apply in the case of the naming of individuals whether these be the general practitioner, the Barrister or the First and Second Named Respondent. I therefore refuse the application to name the general practitioner, the Banister and the First and Second Respondent. 

As far as the naming of the agency was concerned I gave an Order on 31 August to the Irish Times because it was that newspaper which made application to the Court in accordance with the directions given by Laffoy J. It now appears to me that common sense would dictate that I should allow the general publication of the name of the agency. It has been suggested to me that I should not extend this permission to Independent Newspapers because they had already published the name in contempt of Ms Justice Laffoy's Order. I am not prepared to take this attitude. The matter of possible contempt or alleged contempt by Independent Newspapers will be dealt with next week when the motion for attachment and committal comes before the Court. In the meantime I think it would create an unreal situation to forbid one of the major newspapers in the country to publish a name which all other forms of the media were permitted to publish. 

The overriding need in this case is to protect the identity of the infants and of their mothers. I would ask all the members of the media who are present in Court to give undertakings in that regard in the terms of my Order of Tuesday last the 31 August. If any of you feel that you have not instructions to give such an undertaking I will make an Order in those terms allowing for the publication of the identity of the agency only. This Order will also apply generally to the media and to anyone who has notice of its making.