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Cite as: [1998] 1 IR 359, [1997] IEHC 30, [1997] 2 ILRM 541

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Irish Times Ltd. v. Ireland [1997] IEHC 30; [1998] 1 IR 359; [1997] 2 ILRM 541 (18th February, 1997)

THE HIGH COURT

JUDICIAL REVIEW

1997 No. 43 JR

1997 No. 45 JR

1997 No. 44 JR

1997 No. 50 JR

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

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

1. 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.

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

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

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

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

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

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

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

3. From these several documents the following facts emerge.

4. 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.

5. 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:-

"(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."

6. 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.

7. 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."

8. 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.

9. 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."

....."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."

10. 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.

11. 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.

12. 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."

13. 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.

14. 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.

15. 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?

In Re: R Limited 1989 IR page 126 at page 134 the Supreme Court was considering an Application under Section 205 of the Companies Act, 1963 which provided that a member of a company might apply to the High Court for relief where the powers of the directors of the company are being exercised or its affairs been conducted in a manner oppressive to him or any of the members. Subsection 7 of that Act provides:-

"If, in the opinion of the Court, the hearing of proceedings under the Section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interest of the company, the Court may order that the hearing of the proceedings or any part thereof shall be in camera."

16. The provisions of this section and the impact which Article 34.1 has upon it were considered by the Supreme Court and in the course of delivering the majority judgment

Walsh J. said:-

"The issue before this Court touches a fundamental principle of the administration of justice in a democratic State, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in Courts established by law and shall be administrated in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the Court must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the Courts are open should themselves have any particular interest in the case or that they should have had any business in the Court. Justice is administered in public on behalf of all the inhabitants of the State.

Prior to the enactment of the Constitution the question of whether or not particular matters should be heard in public was a matter of discretion of the Judges subject of course always to particular statutory provisions which dealt with the subject. However, it was always quite clear that the Judges had no discretion to prevent the public from attending the hearing unless they were satisfied that either total privacy for the whole or part of any case was absolutely necessary to enable justice to be done. The primary object of the Courts is to see that justice is done and it was only when the presence of the public or public knowledge of the proceedings would defeat that object that the Judges had any discretion to hear cases other than in public. It had to be shown that a public hearing was likely to lead to a denial of justice before the discretion could be exercised to hear a case or part of a case other than in public.

This fundamental principle in the administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937.....

The Courts (Supplement Provisions) Act, 1961 by Section 45, subsection 1 permits the administration of justice otherwise than in public in applications of an urgent nature for relief by way of Habeus Corpus, bail, prohibition or injunction, matrimonial causes and matters of lunacy and minor matters and proceedings involving the disclosure of a secret manufacturing process. The Section went on to say that the cases so prescribed should be in addition to any other cases prescribed by any Act of the Oireachtas. These specified exceptions were in fact matters in respect of which the Judge had a discretion prior to the enactment of the Constitution. This discretion would appear to have survived Article 64 of the Constitution of Saorstat Eireann which required the administration of justice 'in the public Courts.....' but did not provide for exceptions to be permitted by Statute. The Constitution of 1937 removed any judicial discussion to have proceedings heard other than in public save where expressly conferred by Statute. Indeed many matters which come under the heading of 'lunacy and other matters' probably do not constitute the administration of justice but simply the administration of the estates and affairs of the wards of Court.

It is already well established in our constitutional juris prudence that a phrase such as 'save in such special and limited cases as may be prescribed by law' which appears in Article 34.1 of the Constitution is to be construed as a law enacted or re-enacted or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution. In this case it is unnecessary for me to offer any view on the interpretation to be given to subsection 3 of Section 45 of the Courts (Supplemental Provisions) Act, 1961. Subsection 2 of Section 45 refers to 'any other cases prescribed in any Act of the Oireachtas' which of course must necessarily mean any Act of the Oireachtas established by the Constitution. There have been many such provisions including the one in question in this case."

17. This clear statement of the law must be considered, I believe, in the light of the fact that Mr. Justice Walsh was not concerned with a case in which a conflict of constitutional rights existed. In the present case such a conflict in my view does exist and therefore the position must be considered in that context.

18. The hierarchy of constitutional rights recognised as existing by the Supreme Court in among other cases the People (Director of Public Prosecutions) -v- Shaw , 1982 IR page 1 was dealt with by Mr. Justice Kenny in the following terms:-

"There is a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail..... The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, to this Court. When a conflict of constitutional rights arises it must be resolved by having regard to (a) the terms of the constitution and (b) the ethical values which all Christians living in the State acknowledge and accept and (c) the main tenets of our system of constitutional parliamentary democracy.... I have no doubt that the decision made by Detective Superintendent Reynolds with regards to M's right to life as ranking higher than the appellant's right to personal liberty for three days was the correct one."

19. It is, in my view, clear beyond doubt that in reaching his decision in the present case the learned trial Judge had in the forefront of his mind the Accused's right to a fair trial in due course of law as was his right under Article 38.1 of the Constitution which provides:-

"No person shall be tried on any criminal charge save in due course of law."

20. And he balanced that against the media right and the citizens right of freedom of expression under Article 40.6.1(i) which provides:-

"The right of citizens to express freely their convictions and opinions...."

21. The learned trial Judge in balancing these two rights clearly found that the Accused's right to a fair trial was paramount and ranked higher in the hierarchy of rights than the right of the media to contemporaneous reporting. In this conclusion, he was undoubtedly correct (see the judgment of Denham J. in D -v- D.P.P. 1994 2 IR 465).

22. Applying the test indicated by Mr. Justice Kenny in D.P.P. -v- Shaw , I am of the view that in making this judgment the learned trial Judge applied the correct test.

23. It has been submitted during the course of the hearing before this Court that apart from the argument based on Article 34.1 of the Constitution that a trial Judge has no power vested in him to make such an Order on the grounds that by doing so he alters the nature of the trial over which he is presiding and apart from any constitutional restraints to do so would be a purported exercise of a power which he did not possess.

24. I do not accept this submission. As a matter of common practice the media do not report the evidence and submissions made to the Court while a jury has withdrawn in criminal, and indeed civil matters, and moreover it is accepted that reporting may be delayed where the accused standing trial is the first of a series of cases so that juries in other cases in the series will not be prejudiced by knowing the evidence in the first case. It is submitted by the Applicants that the media withhold contemporaneous reporting in such cases only in the spirit of co-operation with the Court or alternatively by reason of a reluctance to face contempt proceedings if publications are made. I do not accept that this practice developed otherwise than as a result of a long-standing recognition of an Order prohibiting such publication made in the interest of ensuring a fair trial for the Accused in accordance with law. In dealing with this matter Lord Denning M.R. in R -v- Horsham Justices 1982 2 AER 269 at page 285 says:-

"It has long been settled that the Courts have power to make an Order postponing publication (but not prohibiting it) if the postponement is necessary for the furtherance of justice in proceedings which are pending or imminent. It was so held in R -v- Clement 1821 4 B & ALD 216 which was approved by the House of Lords in Scott -v- Scott . It concerned the Cato Steele conspiracy. Several men were charged in one indictment with high treason. They were to be tried successively one after the other. Before the trial of the first man, Lord Davitt, C.J., in open Court prohibited publication of the proceedings of that or any other day until the whole trial was brought to a conclusion. The editor of the Observer on the next Sunday, in breach of the Order, published a fair and accurate account of the first three days. He was held in contempt of Court and fined £500. On a rule being obtained to set it aside, the Court of King's Bench held that the Order of the Chief Justices was perfectly good because all the trials could be regarded as one proceeding and it was only an Order prohibiting publication until the end of the trial and not prohibiting it altogether.

In addition at common law whenever the Judge sends the Jury out he expressly or impliedly directs that there should be no publication of what was said in their absence; such as when a question arises at a trial whether a confession is admissible or not; or whether evidence of a similar fact can be given or not; or whether a man has put his character in issue so as to let in his previous convictions. In such case the Judge sends the Jury out and conducts a 'trial within a trial' so as to decide the question. It is well understood by the press that there must be no publication of what takes place at 'the trial within the trial' if there should be a premature publication it would constitute a contempt of Court."

25. I am satisfied that once a trial Judge recognises the existence of a superior constitutional right as found by the Superior Courts then there is vested in him the power to take such measures as are necessary to ensure that the trial over which he is presiding is conducted in a fair manner and in accordance with the Constitution and to protect that constitutional right.

26. There remains now to consider the necessity which may have existed in the present case for the making of an Order of the depth and scope as was made in this case. It is submitted that the Order made was far wider than the occasion demanded and that if any restrictions on reporting were required then the situation would have been met by imposing less onerous restrictions.

27. The case before the learned trial Judge involved the charge of possession for sale and importation into the State of cocaine to the value of £47,000.00. It was the largest seizure of cocaine in Ireland and possibly in Europe to date. It was the first prosecution for alleged importation of the drug into the country under the 1996 Act. The case had attracted significant media interest. The learned trial Judge was aware of a case which was heard before him in Michaelmas 1996 ( People -v- Staunton ) which, by reason of inaccurate radio reporting by a local radio station had to be aborted during the hearing and the jury discharged. That was also a drug prosecution. The learned trial Judge was aware of the interest of the media and was aware that the accused had been in custody awaiting trial for upwards of five months and that they were foreigners. He expressed the view that "having regard to what happened and having regard to what was happening I could see it was going to happen again and this trial will be aborted and they will be back in custody for a considerable period". He expressed the view that he had reliable information that "it started on a sinister footing on Tuesday last". He was apparently referring at that stage to the fact that in a radio report put out on local radio on that date it was stated that a jury was being sworn for the case. That was inaccurate. No jury panel had been summoned for that date. He stated that it was also reported that some of the jury panel having heard this dropped what they were doing and ran to the Courthouse. He stated that this was an inaccurate report. The learned trial Judge noted a second matter. He noted that the application to discharge his original Order commenced at 4.20 p.m. but that at 2.30 p.m. on that afternoon the Evening Echo reported that it was "in Court today fighting an Order banning the newspaper from reporting the case and that the Irish Times also made a report on the matter today".

28. I am of the view that the learned trial Judge was entitled on that evidence to come to the conclusion that a total ban on contemporaneous reporting was necessary to protect the accused from risk. I make no judgment on whether I would have come to the same conclusion. I am not required to do so. I do find that on the evidence before him the trial Judge was justified in reaching the conclusion which he did.

29. With the use of hindsight if one were to test the necessity for an Order prohibiting publication, one only has to look at the fact that in a leading article of the Cork Examiner on Friday the 7th February a misreporting occurred which gives rise to an application to the Judge on the 10th February, 1997 and again in an article published in the Irish Times on the 7th February and on the 8th February a further instance of incorrect reporting occurred which gave rise to the necessity for a correction in this publication on the morning of Thursday the 13th February. It seems to me that the learned trial Judge must have had ample justification for his apprehension.

30. Argument has been addressed to me as to the degree of risk which must be present before a Judge should make an Order prohibiting or restricting publication.

In Z -v- Director of Public Prosecutions , 1994 2 IR p. 476 the Supreme Court were considering the principles of law applicable when an issue as to the Accused's ability to obtain a fair trial is being challenged in view of the exposure of his case to the public. At page 507 Chief Justice Finlay says:-

"Even apart from what appears to be the submission of both sides in this case that we should follow our own judgment in D -v- Director of Public Prosecutions 1994 2 IR 465, I see no reason on reconsidering the judgment and statements of principle which are unanimous in that case to depart from them. Furthermore in so far as the question of balance between the public right and interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under our constitutional provisions, I am satisfied that no mere statement about balance would be correct. I would prefer to follow the statement contained in the judgment of Denham J. in D -v- Director of Public Prosecutions where at page 474 of the judgement she states as follows:-

'The applicant's right to a fair trail is one of the most fundamental constitutional rights afforded to a person. On a hierarchy of constitutional rights it is a superior right.

A Court must give some consideration to the community's right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant's right to fair procedures is superior to the community's right to prosecute. If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused's right to a fair trial being balanced detrimentally against the community's right to have the alleged trial prosecuted.'

With regard to the general principle of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of the Court in D -v- Director of Public Prosecutions that where one speaks of an onus of establishing a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial Judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."

31. It follows, therefore, in my view that before a Judge presiding over a trial imposes a ban on reporting, he must be satisfied of two things:

(a) that there is a "real risk of an unfair trial" if contemporaneous reporting is permitted, and

(b) that the damage which such improper reporting would cause could not be remedied by the trial Judge either by appropriate directions to the Jury or otherwise.

32. Applying these tests to the present case I am satisfied that the learned trial Judge was justified in concluding that a real risk existed.

33. Finally, it has been submitted to me that in his approach to this matter the learned Circuit Judge should have had regard to the wishes of the Accused and the fact that none of the Accused is in favour of the retention of the Order prohibiting publication and that certainly one and perhaps more of them support the Application in seeking to have the reporting ban lifted. It has been submitted to me that in these circumstances it was improper for the learned Circuit Judge to impose or retain the ban. On the other hand Counsel on behalf of the D.P.P. urges on the Court that this is not the correct test to apply and that the correct test is the trial Judge's obligation to ensure the fairness of the trial irrespective of the wishes of the Prosecution or the Accused.

34. With this submission I am in entire agreement. It would, in my view, be quite wrong for the trial Judge to conduct the trial in accordance with the wishes of either party or indeed both if in fact the result was to be a trial otherwise than in accordance with the Constitution.

35. Accordingly, I am of the view that the learned trial Judge was empowered to make the Order that he did, that in so doing he applied the correct criteria and law, that there was material upon which he was justified in reaching the conclusions that he did, that nothing in his approach to the case removed from him his jurisdiction and that the Order he made was valid. In these circumstances I refuse the relief sought.