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Cite as: [2014] IEHC 155
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Judgment Title: Mooney -v- Commissioner of An Garda Síochána & ors Neutral Citation: [2014] IEHC 155 High Court Record Number: 2012 5808 P Date of Delivery: 14/03/2014 Court: High Court Composition of Court: Judgment by: Gilligan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 155 THE HIGH COURT [2012 No. 5808 P] BETWEEN: DAVID MOONEY PLAINTIFF AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS JUDGMENT of Mr. Justice Gilligan delivered on the 14th day of March, 2014 1. The plaintiff in these proceedings participated in the Witness Security Programme established by the Commissioner of An Garda Síochána arising from his involvement in the investigation and trial of two individuals associated with organised and subversive crime, who were convicted in the Special Criminal Court on 19th November, 2003, and sentenced to terms of imprisonment. The trials in question were held in open court as were a subsequent application for leave to appeal, which was dismissed, and a certified point of law of exceptional public importance application which was also dismissed by the Supreme Court on 4th April, 2006. There were no reporting restrictions in place at those trials and the plaintiff gave evidence in open court. There was no redaction of any of the judgments delivered by the courts which dealt with those matters. The plaintiff avers that during the criminal proceedings he was questioned in open court about the Witness Security Programme. The question at issue before this Court is whether the defendant is entitled to have the within proceedings, initiated by the plaintiff, heard otherwise than in public. 2. The proceedings were initiated by plenary summons issued by the plaintiff on 13th June, 2012. According to the general endorsement of claim attached thereto the plaintiff seeks an order directing the defendants to take all necessary steps to place the plaintiff in the State's Witness Security Programme (hereafter "the Programme"). The plaintiff also seeks a declaration that he entered an agreement with the defendants to the effect that, in return for the provision of certain information to them in relation to the trial of two individuals, they would place him in the Programme. The plaintiff believes that the agreement between him and An Garda Síochána which marked his "Exit" from witness protection did not reflect what he had initially been promised. The plaintiff claims that he was in fact promised, inter alia, a new identity and all the elements necessary for the constitution of a new identity, such as a new date of birth, and that he would be given substantial assistance with relocation to a third country. The first named defendant is of the view that the "Exit agreement" contained the entirety of the relationship between the parties. The plaintiff seeks specific performance of the agreement which he alleges was originally concluded between the parties and which he claims is not reflected in the terms of the "Exit agreement" and also seeks a declaration that the defendants are guilty of misfeasance in public office in inducing the plaintiff to provide certain information to An Garda Síochána in the knowledge that failure to fully realise the agreement allegedly made with the plaintiff would result in grave risk of injury to him. The plaintiff also seeks damages for breach of contract, negligence, misrepresentation, breach of legitimate expectation and breach of the plaintiff's constitutional rights as well as other ancillary relief. 3. By way of notice of motion issued on 3rd December, 2013, the defendants to the within proceedings applied to this Court for an order providing that the plenary action be heard otherwise than in public along with other ancillary orders. The deponent on behalf of the Chief State Solicitor (hereafter "the deponent") avers that the issues which will be in dispute before the Court in these proceedings will relate primarily to the operation of the Witness Security Programme which is a non-statutory programme whereby An Garda Síochána provides security advice and services to witnesses whose lives might otherwise be in danger. The deponent avers that it is the intention of the defendants to call a number of Garda witnesses who have been involved in the Programme for the last number of years. During the course of the hearing in this matter and in response to a question from the Court Mr. Farrell SC, counsel for the defendant moving party, stated that the number of such witnesses was likely to be somewhere in the order of nine. The deponent avers that these witnesses, by the nature of their work, would not only be familiar with the details of the plaintiff's involvement with the Programme but also with the involvement of other witnesses who are beneficiaries of the Programme. The publication of the identities of those Gardaí would render them targets for subversives and persons involved in organised crime. 4. The deponent also avers that the matter in dispute before this Court will require examination of the operation of the Programme in order for the issues between the parties to be determined. The view of the first named defendant is that this would result in the disclosure of the identities of a number of civilians who have an involvement with the Programme and who would then also become a possible target for subversive and organised criminal organisations seeking information in relation to participants in the Programme. This information would, in the view of the first named defendant, compromise the operations of the Programme. 5. The relationship between the Programme and its participating countries, and in particular the country which relates to the plaintiff's case, would also be the subject of evidence in order for this matter to be determined. The view of the first named defendant is that this could be detrimental to the relationship of this State with other participating countries, that relationship being entirely based on the goodwill of the obliging third country. The deponent avers that the giving of such evidence in open court would lead to the first named defendant being unable to guarantee the safety of those either involved in the working of the Programme or those who benefit from its protection. 6. In particular, the deponent avers that as such the Programme is concerned not only with the integrity of the criminal justice system insofar as it relates to the prosecution of the most serious types of subversive and organised crime offences, but is also fundamentally concerned with issues of life and death so far as the witnesses involved in the Programme are concerned. 7. The plaintiff avers that he remains in fear for his personal safety and the safety of his partner and child. However, he avers that it is necessary that the within proceedings are heard in open court in order that he is afforded "an opportunity to achieve that vindication" of his credibility which was challenged during the two criminal trials concerned. The plaintiff also avers that he was questioned about the operation of the Programme insofar as it applied to him during the course of the trial and, therefore, little or no prejudice can arise to the first named defendant by the hearing of the within proceedings in public. Mr. Mooney agrees with the averment of the deponent that the Witness Security Programme is concerned with matters of life and death. He takes the view that in this instance it is his life. Mr. Mooney does not dispute the averment of the deponent that the Programme is fundamentally concerned not only with issues of life and death, but with such issues so far as the witnesses involved in the Programme are concerned nor does Mr. Mooney dispute that unless these proceedings are heard otherwise than in public, the defendants will not be able to put forward their defence without seriously compromsising the safety of those involved in the Programme and its very future operation. Mr. Mooney cannot perceive what prejudice will be suffered by the defendants in this case by hearing the matter in open court. It is, he says, common case that there is a Programme. In the course of the trials the fact that he was in the Programme was open knowledge and he was questioned as to its operation insofar as it applied to him. Insofar as Mr. Mooney avers that if he has not dealt with any assertion of fact or law contained in the deponent's affidavit that should not be taken as an acceptance that same is true and accurate, I take the view that the deponent's averments are extremely serious and in the absence of a denial, it is open to the Court to accept them as bona fide assertions of fact given to the Court, or not as the case may be. Submissions on behalf of the Defendant 9. Counsel for the defendant submitted that the most recent authority of relevance to this application is Independent Newspapers (Ireland) Ltd and Ors. v. Anderson and Ors. [2006] 3 IR 341. In this case the respondent Judge of the District Court made an order restricting the publication by the media of the identity of the first notice party, Joseph Condell, the subject of a criminal prosecution brought by the second notice party, the Director of Public Prosecutions, on the charge of possession of images of child pornography contrary to the Child Trafficking and Pornography Act 1998. The applicant print media organisations applied to have this order discharged. This application was refused by the respondent on the basis that the first notice party had a right to fair procedures and to a good name which would be threatened if his identity was published and on the basis that the order was a final order of the District Court and could not be varied within the confines of that jurisdiction. The applicants applied for an order of certiorari by way of judicial review to have the order of the respondent quashed. It was held by Clarke J. of the High Court (as he then was), after an analysis of the authority in the area, at p. 347 that:
1. there is an express legislative provision to that effect; and 2. in the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or 3. in the event that there is no express legislative provision the court is satisfied that (a) there is a real risk of an unfair trail if the order is not made; and (b) the damage which would result from not making an order would not be capable of being remedied by the trial judge either by appropriate directions to the jury or otherwise."
10. It is true that there is no legislative basis for the Programme. The only legislative mention of relevance is the creation of the offence of making enquiries or taking other steps for the purpose of discovering the whereabouts or any new name or other particulars related to the new identity of a person whom one knows or reasonably suspects to be a relocated witness. This offence is provided for by s. 40(1) of the Criminal Justice Act 1999. Section 40(2) of that Act also provides that it is an offence to disclose such information in relation to a protected witness. The Programme at issue in these proceedings does not have a legislative basis and therefore the first two options outlined by Clarke J. above could not apply. 11. In relation to the third option outlined by Clarke J. that court continued to consider the respective rights of the different parties which it was necessary to take into account in deciding whether such an order should be made. Having referred to the recognition by the Supreme Court in Irish Times Ltd v. Ireland [1998] I I.R. 359 that there may be certain circumstances, other than where such is provided for in legislation, which would allow the grant of such an order that a hearing be held otherwise than in public, Clarke J. held at p. 349 that the "general constitutional discretion" identified in that case:-
12. A further passage from the judgement of Clarke J. in this case at p. 352 was opened where the court stated:
13. Counsel for the defendant also refers to comments made by Clarke J. at p. 353 of his decision in Independent Newspapers (Ireland) Ltd and Ors. v. Anderson and Ors. [2006] 3 IR 341 in relation to the proportionality doctrine. It was stated that:
(i) be designed only to restrict the publication of material which, it is adjudged, would cause serious prejudice leading to a real risk to a fair trial; (ii) should do so in a manner which interferes as little as possible with the entitlement to report fully on all aspects of the administration of justice; and (iii) should do so in a way which is proportionate." 14. Counsel for the defendant then opened Doe v. The Revenue Commissioners [2008] 3 IR 328 to the Court. The plaintiffs in this case concluded an agreement with the defendant, under a scheme for the disclosure of undeclared offshore accounts, in settlement of Revenue liabilities which they owed. The defendant intended to publish details of the settlement and the plaintiffs sought to restrain publication. The plaintiffs brought a preliminary application in advance of issuing the main proceedings seeking to obtain an order that those main proceedings could be issued under a fictitious name and that the proceedings could be held at least partially in camera. This application was refused by Clarke J. of the High Court who held that the only circumstances in which the Court had a constitutional discretion to override the constitutional imperative that justice be administered in public was where there was no other means of achieving a just determination of the proceedings and even in that instance the Court was required to take a proportionate approach to the remedy and interfere as little as possible with the provision of Article 34.1. The Court made a number of comments in relation to its jurisdiction in such matters at pp. 339-340:
33 3.16 Firstly, the obligation that justice, save in special and limited circumstances, be administered in public includes an obligation that all parts of the court process be available to the public. That means that the identity of the parties to proceedings, amongst other things, must, prima facie, be made public: see in particular Roe v. The Blood Transfusion Service Board [1996] 3 I.R. 67 and Re Ansbacher (Cayman) Ltd. [2002] 2 I.R. 517. 34 3.17 Secondly, in the absence of an express statutory provision permitting either that all (or the appropriate part) of a relevant proceeding be heard otherwise than in public or prohibiting the publication of the identity of parties to the relevant proceedings, the only circumstances in which it has been established that a court may restrain a full publication of all that transpired during a court hearing (including the names of the parties) is where the restrictive court order concerned is necessary to prevent a real risk of an unfair trial, and where the damage which would result from not making the order concerned would not be capable of being remedied by appropriate directions to a jury or otherwise. 35 3.18 Thirdly, it seems clear that parties are not entitled to call in aid the undoubted constitutional right to a good name or to privacy, as a countervailing factor to the constitutional imperative that justice be administered in public. It is only where there are no other means of achieving the undoubted entitlement of parties to a just determination of their proceedings, that it has been established that a court has a constitutional entitlement to interfere with the obligation that justice be fully administered in public, and even then the court is constrained to interfere as little as possible with that imperative. Against that background it is necessary to consider the basis put forward on behalf of the plaintiffs for suggesting an entitlement to bring their proceedings anonymously." 16. Further reference was made to statements of Clarke J. at pp. 341-342 of his decision in Doe v. The Revenue Commissioners [2008] 3 IR 328 in which it was stated that:
'None of the rights in consideration are absolute. Where there are competing rights the court should give a mutually harmonious application. Lf that is not possible the hierarchy of rights should be considered, both as between the conflicting rights and the general welfare of society: The People v. Shaw [1982] I.R. 1 at p. 56.' 41 4.6 However, it is clear that McCracken J. in Re Ansbacher (Cayman) Ltd. [2002] 2 I.R. 517 came to the view that rights of privacy or rights to a good name are not sufficient to displace the constitutional imperative to the effect that justice be administered in public. I agree with the views expressed by McCracken J., to the effect that those rights are not of the same weighty nature (in distinction to the right of an accused to a fair trial) such as could displace the clear obligation to conduct the administration of justice in public. To the extent, therefore, that the plaintiffs may have a general constitutional right to privacy which applies to such matters concerning their revenue affairs as may be deemed confidential by statute and where there is no other overriding requirement (such as the proper determination of litigation), those rights cannot interfere with the clear and weighty constitutional obligation to the effect that justice be administered in public." 17. In relation to Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517, counsel for the defendant submits that the rights at issue in that case were also the rights to a good name and to privacy and are not of the same absolute nature as the right to life which is at issue in this application. 18. In the final analysis counsel submitted that the test is a clear one. It was acknowledged by counsel for the defendant that there is a presumption against the defendant arising from Article 34.1. The defendant must carve out an exception to the constitutional imperative that justice be administered in public. Counsel submitted that this is an exceptional case and that the test derived from the Supreme Court decision in Irish Times Ltd v. Ireland [1998] I I.R. 359 and from the decision of Clarke J. in the High Court in Independent Newspapers (Ireland) Ltd and Ors. v. Anderson and Ors. [2006] 3 IR 341 is met. If one considers the two legs of the test identified by Clarke J. in the latter case counsel has to establish whether or not the defendant could get a fair trial in the absence of the matter being heard in camera and that there is nothing else which could be done to avoid prejudicing the defendant's right to a fair trial. It was submitted that it is manifest from the nature of the case that the defendant will not get a fair trial if the matter is heard in public and that directions from the trial judge would not be sufficient to deal with the concerns of the first named defendant in relation to the disclosure in evidence of information relating to the operational elements of the Programme. 19. Dealing with the matters raised by way of reply in the affidavit of the plaintiff, counsel for the defendant submitted that the most substantial point made is that the plaintiff did not benefit from anonymity when he gave evidence in the proceedings before the Special Criminal Court or the other court hearings mentioned earlier in this decision. For that reason alone no such application for the hearing of this action otherwise than in public should be entertained by the Court according to counsel for the plaintiff. Counsel for the defendant submitted in response that these are civil proceedings distinct from the criminal trials in which evidence was given by the plaintiff in the past and any issue of anonymity would have to be considered against the backdrop of the constitutional guarantees related to the right to life and bodily integrity of the plaintiff and the right of the State to protect its witnesses and the integrity of the Programme. However, counsel submits that anonymity would have been illusive in the case of the earlier criminal trials as the plaintiff was giving evidence against people he knew, in relation to transactions with which all parties were intimately acquainted, and from the moment he provided a statement to An Garda Síochána it would have been impossible to keep his true identity secret. It was submitted that this is distinct from a situation where the workings of the Programme would be the central subject of the dispute rather than insignificant or ancillary matters as would be the case in criminal proceedings such as those which occurred in this instance. Counsel for the defendant also submits that Mr. Mooney's questioning at the trial did not include a full examination of the workings of the Programme. 20. Counsel for the defendant, in response to a submission made by counsel for the plaintiff, submitted that it is not the case that the operational details of the Programme would have been the subject of questioning and cross examination at the criminal trials in which the plaintiff gave evidence as this is not something which normally occurs in such cases. Counsel for the defendant also submitted that the State and the first named defendant also have a right to a fair trial and that there is a public right to have offences prosecuted efficiently and that the witness security programme is aimed at realising those fair trial rights. In response to the submission of counsel for the plaintiff that the first named defendant has never applied to have the criminal proceedings tried in camera it was submitted by counsel for the defendant that secret criminal trials have not occurred in this jurisdiction for a long period of time and would be considered very unusual. Submissions on behalf of the Plaintiff 22. Counsel for the plaintiff opened a number of passages from the decision of the Supreme Court in Irish Times Ltd v. Ireland [1998] 1 IR 359 in support of his defence of this motion. Counsel noted that at p. 383 of that decision Hamilton C.J. had stated that:-
O'Flaherty J., in the judgment which he is about to deliver, instances a number of such cases which have been prescribed by law and there is no need for me, in the course of this judgment, to repeat them. It was submitted on behalf of the applicants that in the absence of "an express statutory provision" as that phrase was used by Walsh J. in In re R. Ltd [1989] I.R. 126, no general discretion lies in the court to order a trial otherwise than in public and that as there was no statutory enactment relevant to the instant case, there was no discretion or jurisdiction vested in the learned Circuit Court Judge to make an order that it be tried otherwise than in public.... I am satisfied that 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 is necessary in order to protect an accused person's constitutional right to a fair trial." 23. Counsel for the plaintiff also submits that the Court should not engage in a balancing exercise between the constitutional imperative in Art 34.1 and a number of other rights; this is not the role of the Court. Counsel submitted that it is constitutionally ordained that the only right which can be balanced against the obligation that justice be administered in public is the right to a fair trial. At page 386 of his decision in Irish Times Ltd v. Ireland [1998] 1 LR. 359 Hamilton C.J. stated:
1. (a) that there is a real risk of an unfair trial, if contemporaneous reporting is permitted, and 2. (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." 25. Counsel for the plaintiff also relied on the following rationale for the obligation in Article 34.1, which is set out by O'Flaherty J. at pp. 394-395 of his decision in Irish Times Ltd v. Ireland [1998] I I.R. 359, in support of this contention:
Next, there is the right of the accused to have their cases reported in the press; it has been known in the past for witnesses to come forward to offer evidence favourable to an accused, who might not otherwise have done so, once they have read or heard about the case on radio or television. Especially is this true ever since the enactment of s. 17 of the Criminal Procedure Act, 1967, which prohibits the publication of the proceedings at the preliminary examination of indictable offences in the District Court. Or, an accused about whom adverse rumours had circulated in advance of a hearing might properly wish it to be shown how he came to be vindicated at trial. Finally, there is the freedom of the press argument. I would hold that freedom of the press is guaranteed under Article 40.6.1 and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions." 26. Counsel for the plaintiff also submits, in reliance on the offences created by s. 40 of the Criminal Justice Act 1999, as outlined earlier in this decision, that the Oireachtas has contemplated the issue of the protection of witnesses and has not seen the need to put the programme on a statutory footing and therefore has not provided for any legislative exceptions to the Art 34.1 obligation. Counsel for the plaintiff submits that the Oireachtas has provided such a discretion for the Court in other types of cases such as under s. 10(7) of the Criminal Assets Bureau Act 1996. Counsel for the plaintiff submits that this indicates that the Oireachtas does not consider the circumstances outlined in this case as sufficiently exceptional to warrant the grant of the order sought. 27. Counsel for the plaintiff then opened the authority of Re Ansbacher (Cayman) Ltd. [2002] 2 I.R. 517 a case in which two persons brought an application in the name of their solicitors to prevent the disclosure of their names in a report produced following an investigation of the affairs of a company under s. 8 of the Companies Act 1990. The court heard a preliminary issue as to whether the High Court had discretion to order a hearing in camera or to permit the applicants to proceed with their application without disclosing their names to the court. The court refused the relief sought and held that the exceptions permitted by Article 34.1 extended beyond legislative exceptions but only to special and limited cases which might expressly or by inference be prescribed by the Constitution itself. This extension was restricted to criminal cases and to exceptions which might arise under Article 38 of the Constitution and a desire for confidentiality would not be sufficient under any circumstances to be considered one of those exceptions. McCracken J. held, having referred to the cases discussed earlier in this decision, at pp. 525-526 as follows
28. In relation to Independent News v. Anderson [2006] 3 IR 341, counsel for the plaintiff submitted that the value borne in mind in deciding that some trials may be in camera is the right to a fair trial; the ordinary procedural rights benefiting an accused in a criminal trial. Counsel submitted that this decision makes clear that other rights, such as the right to a good name or rights to privacy, though they may be in issue, are not appropriately taken into account in the context of Article 34.1. Counsel for the plaintiff then submitted that it is not the right to a fair trial which will be impinged upon if the hearing in this particular matter is not conducted in open court but other rights such as the right to run a witness protection programme which is not a legal right and not a constitutional right. Therefore, in this instance the Court does not have jurisdiction to make the order sought. 29. In reliance on the decision of Clarke J. in Doe v. Revenue Commissioners [2008] 3 IR 328, counsel for the plaintiff submits that the parties are not entitled to call in aid another constitutional right, even an express right, and say it must be weighed against Article 34.1; that balance is to be found in the constitutional text itself. Counsel also submitted that Clarke J. in Doe stated that though the question of whether such an order should be granted in a case within the civil jurisdiction may arise, this was not a question which he was required to determine for the purposes of that case. Counsel submitted that in Re Ansbacher (Cayman) Ltd. [2002] 2 I.R. 517 it was expressly stated that such orders were limited to cases in the criminal jurisdiction and that if this was the case then the defendant would fail in his application on this point alone. 30. Counsel for the plaintiff summarised the submissions made on behalf of his client. Firstly, outside of a specific statutory mandate, it is only in a rare case that an order can be made, under the exception recognised in Irish Times Ltd v Ireland [1998] 1 IR 359, providing for a trial to be made in camera. Secondly, the only recognised circumstance to date which will justify such an order is where it is required in order to ensure the fair trial of a criminal case under Article 38 of the Constitution. Even then this will be in limited circumstances such as a voir dire. Thirdly, it may be that that is in fact the only exception. It is expressly so stated in Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517 as such. This also seems to follow from de Giotari v. Smithwick [1999] 4 IR 223 and from the decision of Clarke J. in Doe v. Revenue Commissioners [2008] 3 IR 328 in which the court stated that it was not necessary for the purposes of the application before it to decide that point. Fourthly, whether the exception arises in both civil and criminal cases, it does not mean that an order will be made where litigation would merely be more difficult in its absence; it would only be made where justice cannot be administered fairly in the absence of an in camera order. Fifthly, there is no question of balancing constitutional rights here. Article 34.1 can be ignored only where there is a specific constitutional requirement which can be identified and which justifies the order as in the case of Article 38. Finally, it is not the case that an in camera order can be made simply because in its absence a litigant can derive no benefit from the litigation. The court in Doe and in Re Ansbacher rejected this and said it was the consequence of Article 34 that this should be the case, harsh though that consequence may at first appear. 31. In relation to the facts of this specific case counsel for the plaintiff made a number of submissions. Firstly, this is not a criminal case so if the decision of McCracken J. in Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517 to the effect that such exceptional orders should only be granted in a criminal and not a civil context is correct that is the end of the argument. Secondly, there is no issue in this case of the admission of inadmissible evidence or of inadmissible evidence being heard by the wrong person and, therefore, there is no procedural difficulty which would justify the making of the order sought. Thirdly, it was submitted by counsel for the plaintiff that the first named defendant has overstated the difficulties which it faces. Counsel submitted that the authority in relation to the provision in Article 34.1 cannot be overcome by vague references to the right to life. Counsel for the plaintiff submitted that this submission was not supported by developed evidence. Much of the material in relation to the Programme is already in the public domain or apt to be brought into the public domain in criminal trials as it is commonly the subject matter of cross-examination at trial. Counsel for the plaintiff also submits that if the submissions of the defendant were accepted in this case then the way would be open to many more individuals to seek similar orders in a wide variety of cases. Counsel for the plaintiff submitted that the Court does not have jurisdiction to make the order as sought. Even if the Court has jurisdiction, the facts do not merit the order. Counsel for the plaintiff also submitted that there is a public right to know what happens in court which was emphasised in the Irish Times Ltd v Ireland [1998] I I.R. 359 judgment. Conclusion 33. The thrust of the defendants' application is that the hearing of this action in open court will not only put the lives of a number of different people at risk, but it will also threaten the functioning of the Programme itself, particularly if third country partners became aware that details of their participation in the Programme were being discussed openly. The content of the affidavit sworn on the defendants' behalf and that of Mr. David Mooney are of significance because both the deponent and Mr. Mooney agree that the Witness Security Programme is concerned with matters of life and death. The deponent is fundamentally concerned for the lives of witnesses involved in the Programme and that the defendants will not be able to put forward their defence without seriously compromising the safety of those involved in the Programme and its very future operation, and it is for this reason that he seeks on behalf of the defendants an order providing that these proceedings be heard otherwise than in public. Mr. Mooney does not dispute in his affidavit any of these averments as made by the deponent on the defendants' behalf, but says that it is his life that is effectively at stake and he believes that he remains a target impliedly from subversives or persons engaged in organised crime. Mr. Mooney wishes to vindicate his rights given denials that were advanced by the defendants in their defence and that this must be considered against a background whereby the Supreme Court acknowledged that his general credibility was strenuously challenged in the course of the trial, and that having these proceedings heard in open court would, therefore, afford him an opportunity to achieve that vindication. 34. This Court appreciates that Mr. Mooney gave evidence before the Special Criminal Court in the trial and that his involvement in the Witness Security Programme was brought out into the open and that further, he was referred to in the leave to appeal application and in the application to the Supreme Court to allow an appeal on a certified point of law of exceptional public importance. It is not clear that the intricacies of the Witness Protection Programme were brought out into the open in any general way in any of the hearings, and Mr. Farrell submits that it is simply incorrect to suggest to the court that matters such as what countries participate in the Witness Security Programme, the identity of the handlers, the identity of third parties and the like are canvassed in the course of a criminal trial. 35. It has to be borne in mind that the Oireachtas has not seen the need to put the Witness Security Programme on a statutory footing and, therefore, it has not been possible to provide for any legislative exceptions to the Article 34.1 obligation. Counsel for the plaintiff places reliance on the decision of McCracken J. in Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517, wherein McCracken J. took the view that any extension of Article 34.1 was restricted to criminal cases and to exceptions which might arise under Article 38 of the Constitution. McCracken J. took the view that the Supreme Court judgments in Irish Times Ltd v Ireland [1998] I I.R. 359 were intended to be restricted to criminal cases and to exceptions which arose under Article 38 of the Constitution. In particular, it was made in his view quite clear that a desire for confidentiality could not under any circumstances be considered one of the special and limited cases prescribed by law. It is this latter statement which is the ratio decidendi of the decision of McCracken J. in Re Ansbacher as the plaintiffs in that case were in effect attempting to avoid disclosure of their names in relation to certain breaches of Company Law. In the view of this Court it is significant that McCracken J. tried the issue of the court's jurisdiction to make an order that such proceedings be heard otherwise than in public as a preliminary issue. The application was heard in camera. McCracken J. stated at the outset of his decision at p. 520 that this question was being tried "as purely a legal point" and "without hearing evidence" and "without regard to evidence relating to particular applicants." The report of the decision of the court indicates that the court made no reference to facts particular to the case but decided the point at issue after an analysis of the decisions which have also been discussed earlier in the decision of this Court. However, the situation is different in relation to the within proceedings as this Court has had the benefit of some factual evidence, including sworn evidence to the effect that issues such as the endangerment of the lives of personnel working for the Programme and in relation to the effective functioning of that programme could arise if the identities of such persons and the details of such facts are disclosed. There were no such issues at play before the court in Re Ansbacher. 36. This Court accepts that the general trend of the authorities to date is to the effect that the order which is being sought in these proceedings can only be made in exceptional circumstances, to avoid prejudice to the interests of justice which is not capable of being remedied by the trial judge, either by appropriate directions to a jury or otherwise and each case must be decided on its own unique facts. 37. Article 34.1 of the Constitution, while quite clear in its meaning as was indicated by Denham 1. at p. 399 of Irish Times Ltd v Ireland [1998] I I.R. 359, does not exist in a vacuum and clearly in the present instance there are competing constitutional rights relating to other persons and in addition, the Court has duties under the Constitution. In this instance there is the right of the plaintiff to have his case heard and reported upon in public. There is also, however, the right of An Garda Síochána to carry out their duties for the general welfare of society and to ensure that the law is upheld at times in potentially very difficult circumstances, particularly when dealing with subversives and organised crime. The Programme has been put in place in order to assist with the prosecution of alleged serious offenders. Denham J. stated at p.399 of her decision in Irish Times Ltd v Ireland [1998] 1 IR 359, making reference to The People v. Shaw [1982] 1 I.R.1 :-
39. In his conclusions at para. 54 of his judgment in Doe v. Revenue Commissioners [2008] 3 IR 328, Clarke J. sets out that for the reasons which he sought to analyse he was not satisfied that the court had any jurisdiction to permit proceedings such as those intended by the plaintiffs to be conducted on an anonymous basis. He was not satisfied that any entitlement to confidentiality concerning their tax affairs which the plaintiffs might assert could be of sufficient weight to countervail, even to a limited extent, the constitutional imperative to the effect that justice be administered in public, nor was he satisfied that a requirement that the proceedings be brought in the names of the plaintiffs amounted to an infringement of the plaintiffs' undoubted right of access to the courts. He did not consider that the circumstances gave rise to a sufficient reason for a jurisdiction to permit the proceedings to be brought anonymously nor, in his view, was the fact that some of the purpose of the proceedings might be lost in practice a sufficient factor to give rise to a constitutional jurisdiction to permit the proceedings to be brought anonymously. 40. In my view Clarke J. was leaving open at least the possibility that in certain circumstances consideration could be given to proceedings being heard otherwise than in public in respect of a civil matter. 41. Mr. McCullough outlines six specific points and I reach the following conclusions in respect thereof. As there is no specific statutory mandate provided for in respect of the particular circumstances of this application, it is only in a very rare case that an order can be made providing for a trial to be held in camera. The only recognised circumstances to date which would justify the order that is sought herein relates to ensuring the fair trial of criminal cases pursuant to Article 38. I do not agree that McCracken J. in Re Ansbacher (Cayman) Ltd [2002] 2 I.R. 517 rules out the making of the order that is sought herein, and in this regard I prefer the view as expressed by Clarke J. in Doe v. Revenue Commissioners [2008] 3 IR 328 in this regard accepting that he only discusses the possibility of such an order being made. I agree with the proposition that the order should only be made where justice cannot be administered fairly in the absence of an in camera order. I do not find favour with the proposition that there is no question here of a balancing of constitutional rights, nor do I find favour with the proposition that Article 34 effectively says, for better or worse, that there can be no departure from its stated intention. In both Ansbacher and Doe it was the plaintiff who was seeking the orders, whereas in this situation it is a question of the defendants' right of access to the court to have a fair hearing and put forward its defence in an unfettered way. 42. This Court comes to the overall conclusion that the defendants will be impeded from a fair trial if the matter is to be heard in public and that directions from the trial judge would not be sufficient to deal with the concerns as indicated by the deponent in relation to disclosure in evidence of information concerning the Programme. 43. The Court considers that this is an exceptional case. The Court has to be conscious of the present situation in Ireland pertaining to subversives and organised crime. There is no need to highlight the level of concern that must exist in this regard and the general welfare of society. Furthermore, both parties to these proceedings agree that matters of life and death are involved and more particularly, the averments of the deponent that the publication of the identity of members of An Garda Síochána involved in the Programme would effectively render them targets for subversive and organised criminal gangs is not contradicted. Further, an averment that the Programme itself would be seriously compromised if information relevant to the case is made public is not disputed. The averment that the revelation of the relationship between the Programme and the third country party in question would render the operation of the Programme extremely difficult, is not contradicted. This Court does not find favour with the submission of counsel for the plaintiff that the first named defendant has overstated the difficulties which it faces. These difficulties have been averred to on affidavit and, in the view of this Court, are not directly contradicted and are accepted by the Court as bona fide assertions of fact. 44. I take the view that it is reasonable to come to the conclusion in the particular circumstances that if these proceedings are permitted to be heard in public the lives of persons giving evidence and persons identified during the course of the trial could well be at stake. Furthermore, it is clear that the Programme as operated by the state for the benefit of its law abiding citizens and the general welfare of society could be seriously compromised. It further has to be borne in mind that the order as sought does not compromise in any way the plaintiff's right to a fair trial and the right to call any relevant evidence to the issues at stake between the parties to these proceedings. The plaintiff's right to achieve the vindication which he requires is not threatened, save only that the trial of the action, will not be in public. I find favour with the submission on the defendants' behalf that the judgment of the Court be handed down in open court, subject to any necessary redaction arising always bearing in mind the interests of justice. 45. In all the circumstances, the Court is of the view that it is appropriate and proportionate that an order should be made providing that these proceedings be heard otherwise than in public, with the judgment handed down in open court.
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