SUPREME COURT
Appeal No. 123/2016 & 122/2016
Court of Appeal Record No. 310/ 20016, & 309 2016
High Court Record No. 2013/11584P & 2013/11583P
Denham C.J.
O’Donnell J.
Clarke J.
MacMenamin J.
Dunne J.
Patrick Benedict Gilchrist
Plaintiff/Respondent
AND
Isabel Rogers
Plaintiff/Respondent
AND
Sunday Newspapers Limited, Colm MacGinty, and
Nicola Tallant
Defendants/Appellants
AND
The Commissioner of An Garda Síochána
Notice 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 [1998] 1 IR 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 [1913] AC 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.
Facts
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 [2014] 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 plaintiffs in these proceedings contend that the articles, in addition to disclosing and publicising their identity, contained matters which were seriously defamatory of them. A further article was published later in 2013 and another article in 2014 returned to the topic. The plaintiffs also complain of these articles.
8 It is not necessary to set out in any detail the contents of any of the publications in question. I think it is fair to say that even if there was substance to the allegations made in the article about the running of the programme, (and that will be a matter for the trial in due course) the public identification of the plaintiffs was an extreme step, since it necessarily exposed the plaintiffs, their families, the programme itself and those persons admitted to it, to risk. Even if the substance of the story could be claimed to be in the public interest, the publication of the names of the plaintiffs and their photographs seems driven by desire to increase the impact of the publication. Similarly it would be naive to think that the newspaper’s opposition to a hearing in camera, or the plaintiffs’ support of such a hearing is not influenced by tactical considerations. None of this is necessarily attractive. But that is exactly why the courts should approach the issue with particular care. The principles of open justice and the publicity of proceedings do not depend on whether they are pursued for high principle or for commercial considerations or worse.
9 In the normal course of events, a trial for defamation is held in public and issues of fact are tried before a jury. There were of course close parallels between these proceedings and the case between Mr. Mooney and the Garda Síochána. There was correspondence between the plaintiffs’ solicitors and the Garda Commissioner which inquired as to the Garda Commissioner’s attitude to the manner in which the trial would proceed in the absence of an order similar to that made in the Mooney case. For reasons which have not been clear, no steps were taken initially, Indeed it appears likely that a trial date would have been obtained if there had not been an adjournment for unrelated reasons. However, late in the day, the Commissioner brought an application to be joined to these proceedings and for the proceedings to be heard in camera. The High Court judge case managing the case (MacEochaidh J.) made orders for a joinder of the Garda Commissioner, and then made limited orders restricting access and delaying reporting of the case but did not order a full in camera hearing. As it happens, both the Commissioner and the newspapers were dissatisfied with this ruling, and agreed that these arrangements were unworkable and should be appealed, but the parties obviously differed as to the appropriate order to be made. The plaintiffs’ attitude for their part had been that their principal interest was in securing an early hearing. Latterly however they have come to support the Commissioner’s application, largely on a pragmatic basis that otherwise they foresee considerable difficulties if the Commissioner maintains her contention that evidence about the operation of the programme is official information, and that therefore disclosure of it without permission would be an offence under the Official Secrets Act 1963. The Commissioner has also indicated she was willing to look more favourably on permission if the hearing was in camera. While this had obvious tactical impact it could not be said to be illogical. Faced with this attitude, and while maintaining that the objection under the Official Secrets Act could not be sustained if it was tested in litigation, the plaintiffs nevertheless took the practical view that their interests were best served by an early hearing with the maximum evidence being given free of constraints, and accordingly supported the Commissioner’s application. The argument on principle was largely conducted between the Commissioner and the newspaper.
10 The Court of Appeal (Ryan P., Birmingham and Sheehan JJ.) ([2016] IECA 296) unanimously allowed the Commissioner’s appeal and directed that the trial should proceed in camera. In a judgment delivered by Ryan P. with admirable expedition, he considered that the Supreme Court decision in Irish Times v. Ireland [1998] 1 IR 359, had significantly qualified earlier jurisprudence and in particular the decision of the Supreme Court In re R. Ltd. [1989] I.R. 126. At paragraph 9 of his judgment Ryan P. stated his conclusion:
“My judgment is that the Irish Times jurisprudence and subsequent cases establish that it is possible to exercise the jurisdiction to depart from public hearings in civil actions and not just in criminal trials but the circumstances must be extreme and rare indeed and the evidence cogent. In the extraordinary circumstances that obtain in these cases, it seems to me that the applicant has surmounted the very high threshold necessary to justify the order sought.”
Subsequently in the judgment he elaborated on that reasoning. At paragraph 47 he said:
“Although the words of Article 34.1 are categorical and clear in their meaning, they have not been applied in their natural and ordinary meaning. They are interpreted by the Supreme Court and in a series of High Court judgments as meaning that there are other interests that will operate to make it necessary or appropriate to have some court proceedings otherwise than in public, even in the absence of statutory provisions allowing for that.”
At paragraph 49, he said:
“Construction, on the other hand, is construing the words so as to seek the proper meaning and application that they have in the circumstances to which they must be applied, a process that may result in the words being given a different meaning, and in some circumstances, an apparently conflicting meaning with the natural and ordinary meaning as contained in the dictionary.”
Finally at paragraph 62, he said:
“It seems to me that the principle is that Article 34.1 may be overborne in circumstances not provided by statute in the administration of justice, whether criminal or civil, but only in circumstances of such dire and exigent need in which major constitutional rights and interests are in issue and imperilled to a significant degree which is established by cogent evidence; where the protection of vital national and/or personal rights and interests can only be protected by in camera hearings or other ancillary orders and where the jurisdiction is confined to rare and exceptional and extreme cases. I am also satisfied that this case is such an instance, being unique and of the highest degree of national and individual importance. As to the evidence, like Gilligan J, I am impressed by the material placed before the court in the affidavit of Detective Chief Superintendent O’Sullivan. I do not consider it to be too general in its nature. It is necessarily so and it would take little imagination to work out the specific nature of the dangers involved.”
The Affidavit of Detective Chief Superintendent O’Sullivan
11 The only evidence on the motion was that submitted on behalf of the Commissioner thorough the affidavit of Detective Chief Superintendent O’Sullivan. An extract from this affidavit sufficiently sets out the concerns raised:
“7 The purpose of the WSP [Witness Security Programme] is to guarantee (in so far as same is possible) the lives and safety of “at risk” individuals and their families who have co-operated with the Garda Síochána by giving evidence for the prosecution in criminal trials.
8 It is of paramount importance that the integrity and efficiency of the Witness Protection Programme is not compromised in any way for the following reasons:
(a) It is in the public interest that there should be a functioning Witness Security Programme in the State. This is so as without same those who would otherwise co-operate with An Garda Síochána with the investigation and prosecution of serious crime might not do so.
(b) The programme is responsible for the protection of the lives of the protected witnesses and their families. Any interference with the integrity and efficiency of the WSP could potentially result in a threat to the lives of protected witnesses and their families.
(c) The divulging of the identity or any other details relating to those connected to the WSP could potentially lead to a situation where the lives of those people and the lives of protected witnesses and their families would be endangered. For obvious reasons the identities of WSP officers, employees and external consultants or contractors are kept secret.
(d) The divulging or publication of details of the workings of the WSP could potentially lead to a situation where confidence in the WSP would be compromised resulting in those who would otherwise cooperate might not do so.
(e) The WSP relies [on] the co-operation of other states to operate efficiently. Specifically it relies on other states to relocate protected witnesses from time to time. This occurs on a wholly gratuitous basis. Any threat to the integrity and efficiency of the WSP could result in a situation where the co-operation of those other states is withdrawn.”
At paragraphs 13, 14 and 15, Detective Superintendent said the following:
“13 In that regard it would seem inevitable from the content of the article which forms the basis of these proceedings that the evidence will involve a detailed examination of the operation of the WSP in order for the matters in issue between the parties to be determined. It is difficult to see how this might happen without publication and/or further dissemination of the identities of witness protection officers including the plaintiffs.
14 As deposed to above the identity of all those concerned in the operation of the WSP is kept secret. This is because it is highly likely that witness protection officers would be targeted and placed under surveillance by organised criminals and subversives for the purpose of locating protected witnesses. As such the hearing of the proceedings in public would inevitably lead to the identification of witness protection officers both past and present. Such identification would place not only their lives in danger but also the lives of their families and indeed of protected witnesses with whom they have dealt in the past and with whom they might deal in the future.
15 In addition to the identity of witness protection officers being made public it also seems very likely that proceedings would involve a consideration of the manner in which the WSP operates. Necessarily this will involve a consideration of the tradecraft and operational procedures of the WSP. This is material which is manifestly privileged and secret in nature.”
12 The newspaper adopted a realistic approach to this evidence. It did not challenge it, or seek to cross-examine Chief Superintendent O’Sullivan, but instead argued that the information contained in the affidavit was either insufficient or too general in nature to justify the order sought. The case proceeded therefore on the basis that this evidence was uncontested, and the only question was the conclusion to be drawn from it. It is apparent from the affidavit and the submissions made that the approach of the Commissioner has been to raise a number of different arguments and interests to justify a hearing in camera without distinguishing sharply between them. The Commissioner relies on the alleged threat to the life of officers and members and also to persons in the programme, but also relies on the damage done to legitimate State interest in maintaining the secrecy of the Witness Security Programme.
13 In addition to this submission and as touched on above, the Commissioner also made a more pragmatic argument. She invoked s.4 of the Official Secrets Act 1963 which provides that the communication of any official information unless duly authorised, is an offence. Due authorisation may be obtained under s.4(4) from the Minister or State authority or some person authorised in that behalf. The Commissioner contended that the disclosure of information in relation to the Witness Security Programme by any of the potential witnesses in the case would constitute the disclosure of official information and prima facie a breach of the Office Secrets Act. Furthermore, she informed the parties that she would be disposed to providing an authorisation under s.4(4) if the proceedings were heard in camera, but would not do so if they were to be held in public. The plaintiffs did not accept that the disclosure of information given in court could or would necessarily constitute a breach of the Act, but considered that to establish that position would require lengthy proceedings and considerable delay. It was not realistic to think that the case could be conducted with such a doubt hanging over the evidence. This was not something which was merely peripheral to the case but central to it. This consideration led the plaintiffs to contend that the case could not realistically be maintained unless the risk of prosecution under the Official Secrets Act was removed, and to support the application for a hearing in camera. A further matter touched on in the affidavit of Detective Chief Superintendent O’Sullivan though not explored in the submissions, was addressed in passing in the argument before this Court. That is because it was contended successfully in both the Mooney proceedings and in an application for third party discovery in these proceedings, that certain information held by the Commissioner was subject to public interest privilege. It was therefore possible that even aside from the question of the Official Secrets Act and any compatibility of that Act with the principle of the separation of powers, that the relevant evidence might be validly objected to on grounds of privilege, which could not be waived by the individual witness. Because this matter was only touched on in argument, it was not explored in detail. It is plain that substantial issues might arise if any such privilege was asserted, but it was sufficient for the Commissioner’s (and the plaintiffs’) purpose that such a claim might be made with an impact on the capacity of the hearing to do justice between the parties.
14 As already observed the parties took up starkly opposed positions. Both agree that MacEochaidh J.’s ruling was an unworkable compromise and that the only viable options were therefore either a trial wholly in public, or a trial wholly in camera as occurred in the Mooney case. The arguments also focused heavily on the manner in which the Court should consider two relatively recent Supreme Court decisions, In re R. Ltd. [1989] I.R. 126 and Irish Times v. Ireland [1998] 1 IR 359. In essence, the Commissioner argued that the Irish Times case represented a significant qualification of a general principle articulated in In re R. Ltd. and showed that Article 34.1 might have to give way on occasions where other constitutional claims were involved. In the Irish Times case, the context was a criminal trial and the relevant right to be balanced with Article 34.1 was the Article 38 right to a trial in due course of law, which was considered to rank highest in the hierarchy of constitutional rights, but in principle, it was possible that the issue could also arise in a civil context and other constitutional rights could also be weighed in the balance and if sufficiently substantial and pressing, could outweigh the provisions of Article 34.1. Here in particular, what was in issue was nothing less than the constitutional right to life which justified departure from the general rule in Article 34.1. In essence this was the argument accepted by the Court of Appeal.
15 The newspaper for its part suggested there was much less tension between the two decisions and that the Irish Times case did not establish some general principle of balancing other constitutional rights against Article 34.1. Instead, the newspaper argued that the underlying principle in Irish Times v. Ireland was entirely consistent with In re R. Ltd.: a departure from trial in public mandated by Article 34.1 at least in general was only justified when it would not be possible to do justice otherwise. This was something contemplated by Article 34.1 since it permitted exceptions to the general rule. Thus, the issue in any case the capacity of the Court to administer justice, something which was plainly in issue in Irish Times v. Ireland and did not involve any question of balancing competing rights.
16 Because of these opposed positions, there was little exploration of intermediate options. This was to some extent understandable because the clarity and strength of the newspaper’s argument in particular was in part dependent on the absolute nature of the principle it contended for. If it was possible to depart even to a limited extent from the requirement of a trial in public under Article 34.1 (whether by anonymising witnesses or redacting transcripts or providing for limited or deferred reporting), then whatever the practical merits of such a course and the fact that from the point of view of the defendants it might be preferable to a full in camera hearing, exploration of such a course would necessarily raise the fundamental question of principle as to where the justification for any departure even limited, from trial in public, was to be found. If there was a justification for even a partial departure from the general principle, then it would be very difficult to argue that there was no justification in a particularly demanding case (such as the present) for a full in camera hearing. Inevitably therefore the parties were driven to argue for the extreme position of either trial either fully in public or fully in private. While I understand the logic which led the parties to this position, it is frustrating when seeking to identify both the constitutional principles involved, and the practical consequences in a particular case. I would also have found it helpful to have had greater exploration of the case law in related areas and in other jurisdictions. In addition, notwithstanding the fact that the Commissioner of An Garda Síochána was involved and represented by the Chief State Solicitor, I think the case would have benefitted from notification to the Attorney General under Article 60 Rule 2 of the Rules of the Superior Courts since a major constitutional issue is involved. It is also somewhat surprising that no other media organisation sought to intervene and make submissions. This decision therefore is one which may require to be revisited in the context of further argument where more nuanced possibilities may arise, even in this case. Nevertheless, it is necessary to resolve the dispute between the respective parties in this case, and to do so promptly to allow the defamation proceedings to be heard.
In re R. Ltd. [1989] I.R. 126
17 Prior to the decision In re R. Ltd., the question of trial otherwise than in public had not really troubled the Irish courts to a significant extent. There was a working assumption that cases could be heard otherwise than in public in certain traditional areas such as family law, applications in relation to children, secret processes, wardship and other sensitive areas. The most common examples were those contained in s.45 of the Courts (Supplemental) Provisions Act 1961, as follows:
“45.—(1) Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters;
(d) proceedings involving the disclosure of a secret manufacturing process;
(2) The cases prescribed by subsection (1) of this section shall be in addition to any other cases prescribed by any Act of the Oireachtas.
(3) Any provision contained in any statute of the Parliament of the former United Kingdom or of the Oireachtas of Saorstát Éireann which provided for the administration of justice otherwise than in public and which is not in force solely by reason of its being inconsistent with the provisions of the Constitution of Saorstát Éireann or the Constitution, as the case may be, shall have full force and effect.”
In addition to the specific provisions of s.45 of the 1961 Act, there are a surprising number of specific provisions either permitting or in some cases requiring a hearing other than in public. In a useful article in the Irish Law Times in 2003, Dr. Elaine Fahey noted that at that time there were more than 100 such examples. (See Fahey, “Open Justice, the Practical Operation of Article 34.1 of the Constitution” (2003) 21 Irish Law Times 303-308, and 316-320). The statutory provisions permit or sometimes require a hearing otherwise than in public by reference to the general subject matter of the proceedings.
18 In re R. Ltd. concerned proceedings in relation to a high profile company brought pursuant to s.205 of the Companies Act 1963 which provides a remedy in the case of oppression of minority shareholders. Section 205 was something of an innovation in Irish law and indeed the common law world when introduced in 1963. Perhaps because of concern as to the matters which might be ventilated in any proceedings, the section made provision for hearings other than in public. Section 205(7) provided:
“If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.”
19 The logic of this exception may have been that the type of internal disputes in a company which could be brought to light in minority oppression proceedings would be damaging to the company’s interest vis-à-vis its competitors. Furthermore, the possibility that internal commercial affairs might be ventilated in public might be used to bring pressure to bear to force a settlement. The practicality however of the provision was more doubtful since, as was observed in In re R. Ltd., other proceedings could be brought relating to the same subject matter which had no equivalent provision.
20 In that case a petition was brought setting out sensitive confidential information including detailed accounts of the company, its five year business plan, and the precise terms of an undisclosed and incomplete commercial transaction. There was evidence that the petition and grounding affidavit had been disclosed to a third party with a view, it seems, to obtaining publicity. The High Court unusually, made an ex parte order that the proceedings be heard in camera. This order was appealed to the Supreme Court. In the Supreme Court there was a sharp division of opinion. Finlay C.J. and Hamilton P., both of whom it might be noted had considerable experience of trials, including s.205 claims, considered that it was plain that some part of the proceedings would have to be heard in private, and that the real question was whether there should be some limited order under s.205 or rather whether the entire proceedings should be heard in camera. Reluctantly, Finlay C.J. came to the conclusion that it would be impractical to segregate the hearing and was satisfied that in the interests of justice the order for the entire of the proceedings should be affirmed. However the majority of the Supreme Court (Walsh, Griffin and Hederman JJ.) took a radically different view.
21 The principal judgment was delivered by Walsh J. He referred to other human rights instruments which had provisions similar to Article 34 including, Article 6.1 of the European Convention on Human Rights. He considered moreover that the Constitution of 1937 removed any judicial discretion to hear proceedings other than in public save where expressly conferred by statute. He also considered that it was well established that a phrase such as “save in such special and limited cases it may be prescribed by law” related only to a post-1937 law that is law as enacted or re-enacted or applied by the Oireachtas subsequent to the coming into force of the Constitution. He simply noted in passing the terms of sub-s. 3 of s. 45 of the Courts (Supplemental Provisions) Act, 1961 (although the reference might perhaps suggest some doubt over its validity). In his view the requirements of s.205(7) that a court be of opinion that the hearing of the proceedings in public would involve disclosure of information which would be seriously prejudicial to the legitimate interests of the company was a condition precedent to the exercise of the discretion conferred by the section but was not the only such condition. In addition to that he considered that it must be shown:
“that a public hearing of the whole or of that part of the proceedings which it is sought to have heard other than in public court would fall short of the doing of justice”. (p.137)
He did not consider that the fact that there might be serious prejudice to the legitimate interests of the company was equivalent to exceptional circumstances where public knowledge of the proceeding would likely lead to an injustice or to defeat the object of the court and deny justice. Furthermore, even if it could be shown that the disclosure of some information would prevent justice being done, that fact alone would not justify the entire of the proceedings being held otherwise than in public unless it could be shown that not to do would make the trial so unsatisfactory and difficult as to fall short of the proper administration of justice in that it would not be a fair hearing. The end result was summarised accurately in the headnote of the report: it must be necessary to show that the administration of justice in public would by itself operate to deny justice in the particular case or impede the doing of justice between the parties. Walsh J. noted in passing that certain statutory provisions were not merely discretionary but mandatory in relation to the provision for a hearing otherwise than in public. He considered it was not necessary for the purpose of that case to consider the interpretation which should be given to such mandatory provisions, but it seems plain that given the very restrictive approach taken provisions such as s.205(7) which permitted but did not require a hearing in camera, that any mandatory statutory exclusion would be constitutionally frail, unless it could be demonstrated that necessarily in such a case coming under that provision that it could be said that the administration of justice would not be possible unless conducted otherwise than in public. The distance between the majority and minority views is shown therefore by the fact that the majority appear to have considered that no part of the instant proceedings should be heard in camera. Even if it was demonstrated (as it was accepted) that the hearing of evidence in public would be damaging to the legitimate interests of the company, that in itself was not sufficient for the majority because it was still possible to do justice between the parties in the case i.e. to determine whether or not there had been minority oppression and if so to make an appropriate order to bring that oppression to an end.
22 In re R. Ltd. effected a very significant and for the most part beneficial correction in the practice of courts in relation to in camera hearings. However, even at the time it was arguable that it was something of an over-correction. In subsequent years, in order for a hearing to proceed in camera, it would be necessary first to demonstrate a post-1937 statutory provision permitting such a course, but in any event it would be necessary to show in the context of the particular case, that it was not possible to achieve the administration of justice in the particular case if it, or any part of it, was heard in public. While the effect on the administration of justice is a thread running through the development of the law in most jurisdictions on hearings in camera, it had not generally been interpreted as narrowly as it was in In re R. Ltd., or indeed as the sole and exclusive criterion. Thus for example, Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (1950) (“ECHR”) provides as follows:
“In the determination of his civil rights and obligations … or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” (Emphasis added)
23 The formulation in the ECHR makes it clear that while interference with the administration of justice is a ground for permitting hearing other than in public, it is not the sole ground. There are other areas where it can be said that the exclusion of the public is justified, normally because publicity for proceedings or even access to them would offend important values, many of which are also protected by the Convention and Constitution. The headings in s.45 of the 1961 Act do not themselves identify subject matter where it will be impossible to do justice if a hearing is conducted in public: instead they identify areas where it is generally believed that a hearing in public provides justice at too high a price for other values considered important. Under the Convention at least, it is not necessary to force cases involving intimate relationships, the affairs of children, or those of people under a disability into the restrictive rubric of demonstrating that justice cannot be done in the individual case, even if that may be a component of a valid and justifiable decision to exclude the public from whole or part of the case. It is also noteworthy that national security is a specific ground for a hearing other than in public under the Convention. Again, both on the language of the Convention and as a matter of logic, the exclusion in such cases cannot be justified merely by a demonstration that justice could not be done in the individual case. In many such cases it can said that justice can be done in that case: a person can be tried, convicted or acquitted, but if in public, the price paid in terms of damage to national security, or the interests of families, children or persons under disability, is regarded as unacceptable. Looked at in another way perhaps, it might be said that the administration of justice should not require that serious damage should be done to interests which the Convention or the Constitution considers of significant value as the price of access to court. Counsel for the newspaper accepted that the trial in camera of this case would not offend the provisions of Article 6.1 of the ECHR and the question arises why the terms of Article 34.1 should be interpreted differently and more restrictively.
24 It has largely been assumed that s.45 of the 1961 Act is an uncontroversial enumeration of those areas where it may and often will be appropriate to have a hearing in camera. However, as already observed these areas are themselves not capable of complete explanation by reference solely to the criteria established in In re R. Ltd. Most obviously, the last provision, litigation involving a secret process, involves a different consideration: that is that it should be possible to bring proceedings to vindicate an interest without destroying it in the process. If this provision is justified on the basis that the administration of justice may be damaged if a party were unwilling to litigate at the price of publicising what is a secret process, That would be a significant qualification of the approach contemplated in In re R. Ltd. which seemed to set out a test that it would not be possible to do justice in the individual case. Furthermore, it seemed problematic that the constitutional standard of the administration of justice in public should depend on the relative tenacity of a party— the more fortitude a party shows in protecting rights, then the more likely it is that their legitimate interests will be damaged. The more a party maintains that they will not proceed unless there is a trial in camera, the more likely it is that the standard rule required in Article 34.1 will be departed from.
25 While a textual argument can be made in favour of the proposition that the only law which can provide for a hearing otherwise than in public is one enacted post-1937, that is surely doubtful. In any event, this argument cannot be reconciled with the decision in Irish Times v. Ireland where there was no such provision but it was accepted that a court had power at common law to control its own proceedings. While it is true Article 15.2 of the Constitution uses the word ‘law’ only in the context of legislation, that is because the object of that provision is to identify the sole legislative assembly empowered to enact legislation for Ireland. In other areas of the Constitution, the word’ law’, whether in Article 40.1(equality before the law) or in Article 38 (due course of law), or otherwise, the word is clearly capable of a broader interpretation. Once again, a close literal reading of the reference to “as may be prescribed by law” might imply the future tense, an approach that is reinforced by the Irish text. This may be an example however of what the late Professor Kelly in the First Edition of the Irish Constitution (Dublin, Jurist Publishing Co. Ltd., 1980), p.115 meant when he observed: “it must be seriously doubted whether the Constitution will stand up to such minute linguistic exegesis, or whether one’s sense of unreality - bearing in mind the history of the Irish version . . . - can remain suspended in the face of it”. In any event, such an approach sits uneasily with the underlying rationale asserted for Article 34.1. If indeed the only test is the capacity of the Court to administer justice in an individual case that may not be something which is capable of legislative prescription in advance. It is more plausible that the legislature should identify those broad areas of subject matter in which a hearing other than in public may be permitted, but that courts would have to be decide whether in any given case justice was capable of being administered if the hearing was held wholly or partially in public. The two tests overlap but are not identical. In any event the decision in Irish Times v. Ireland establishes that the courts retain power, not dependent on legislation, to limit the extent to which a case is heard in public.
26 Some of these issues arose for consideration in Irish Times v. Ireland. In that case, at the commencement of large scale criminal prosecutions in Cork, the trial judge imposed restrictions on contemporaneous reporting of the trial. The effect of the restriction was to prevent contemporaneous reporting but to permit full reporting after the trial had concluded. A number of media organisations brought a judicial review challenge to the order. The essential contention was, relying on In re R. Ltd. that Article 34.1 provided for a near absolute requirement of the administration of justice in public. However in the High Court Morris J. (as he then was) dismissed the claim. He acknowledged that the restriction on contemporaneous reporting constitute an infringement of Article 34.1. However, he considered there was a hierarchy of constitutional rights (relying on The People (DPP) v. Shaw [1982] I.R. 1) and when a conflict arose between them that which ranked higher must prevail. The accused’s constitutional right to a fair trial in due course of law had to be balanced against the right of public to receive information. The right to a fair trial was paramount and ranked higher than a right to contemporaneous reporting and that right to a fair trial included a right to a trial by a jury unprejudiced by pre-trial publicity. A trial judge must be satisfied that there was a real risk of an unfair trial if a contemporaneous reporting was permitted and that such improper reporting would cause damage which could not be remedied by appropriate directions to the jury or otherwise. The trial judge in this case had been aware of a large drug prosecution in late 1996 which had been aborted and a jury discharged following inaccurate media reporting. In the circumstances the High Court considered that the Circuit Court judge was entitled to conclude that a restriction on contemporaneous reporting was necessary to protect the accused from the risk of an unfair trial.
27 The Supreme Court unanimously allowed the appeal. Significantly however, the Court accepted the analysis of the High Court, but concluded that the trial judge did not have sufficient evidence to justify him in holding that there was a real risk of an unfair trial if contemporaneous reporting of the trial was permitted. It is clear that the Court was concerned with questions such as the capacity to restrict the reporting of a trial within the trial. Thus, although reversing the High Court and quashing the order of the Circuit Court judge, the observations of the Court supported the view that there could be some restrictions on the Article 34.1 requirement that justice is to be administered in public. A representative passage was that contained in the judgment of Denham J. (as she then was) at pages 398-399:
“There is no general discretion in or statutes pursuant to Article 34.1 of the Constitution which empowered the learned Circuit Court judge to order the hearing otherwise than in public. Applying the decisions of Walsh J in In Re R Ltd. [1989] I.R. 126 at p.135 and Finlay C.J. in Irish Press Plc v. Ingersoll Publications Ltd. [1993] I.L.R.M. 747 at p.751, there is no law, that is statute, pursuant to Article 34.1, permitting the learned Circuit Court judge to limit access to the court.
However that does not dispose of the matter. While there is no discretion in Article 34.1 to order a trial otherwise than in public Article 34.1 does not exist in a vacuum. There are competing constitutional rights, rights relating to other persons in addition the court has duties under the Constitution. The court has a duty and jurisdiction to protect constitutional rights and to make such orders as are necessary to that end. There were several rights for consideration at the trial before the Circuit Court. The accused had a right to trial in due course of law (Article 38.1) and to a trial with fair procedures (Article 40.3). The trial judge had a duty to uphold the Constitution and the law and to defend the rights of the accused. Balanced against that was the community’s right to access to the court, to information of the hearing, to the administration of justice in public (Article 34.1) That right is clearly circumscribed by the terms of Article 34.1. However, also in the balance was the freedom of expression of the community, a freedom of expression central to democratic government, to enable democracy to function. There was also the freedom of expression of the press. Thus consideration should have been given to Article 40.6.1 (i) which may include the publication of information: Attorney General of England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597. The right to communicate (Article 40.3) was also part of the panoply of rights in the bundle of rights for consideration.
None of the rights in consideration are absolute. Where there are competing rights the courts should give a mutually harmonious application. If that is not possible the hierarchy of rights should be considered both as between the conflicting rights and the general welfare of society: People v. Shaw [1982] I.R. 1 at p.56.
The accuseds’ right to a fair trial is superior to the other rights in the balance: D v. Director of Public Prosecutions [1994] 2 I.R. 465; Z v. Director of Public Prosecutions [1994] 2 I.R. 476. However, categorising the rights and placing them in the appropriate hierarchy does not dispose of the matter.”
28 It was held that the fundamental principle that justice be administered in public meant that the jurisdiction to make an order limiting contemporaneous press reporting of a trial arose only in exceptional circumstances. At page 410 of the report, Keane J. (as he then was) said:
“The limitation imposed by [Article 38.1] on the contemporaneous reporting of court proceedings are not, in general prescribed by any act of the Oireachtas. Article 50 of the Constitution, which preserved the existing body of statute and common law in existence at the date of the enactment of the Constitution to the extent that it was consistent with its provisions, carried forward into our law and machinery of contempt of court, which in turn has been carried over by the Constitution of the Irish Free State. That law has always recognised the inherent jurisdiction of the courts established under the Constitution to take such steps as are necessary to ensure that the proper administration of justice is not compromised by the manner in which court proceedings are reported. This will on occasions involve the postponement of the publication of reports of court proceedings rather than their total suppression. The media have properly recognise that, where a “trial within a trial” takes place in the absence of a jury to determine whether particular evidence is admissible, reporting of the proceedings must, in fairness to the accused, be deferred until the entire trial has concluded. A similar restraint may be required in the case of persons jointly indicted but separately tried. The jurisdiction of the courts to ensure that in instances such as these the integrity of the trial process is preserved by means of the contempt of court procedure is not in doubt.”
29 Irish Times v. Ireland is an unusual case in that while the media appellants succeeded, in setting aside the order of the trial judge and the decision of the High Court, the outcome was undoubtedly a qualification of the more absolute approach which was understood to have been established by In re R. Ltd. It was plain that there could be a restriction on trial in public on matters coming within the inherent jurisdiction of the court, and without any post-1937 statute providing for such a limitation. It is also apparent that the right of trial in due course of law under Article 38 and Article 40.3 had been a factor leading to the permissible restriction on the Article 34.1 obligation of trial in public save in exceptional cases. In the aftermath of the decision in Irish Times v. Ireland, the question became whether that qualification was a narrow one and limited to the traditional cases of certain limitations on the reporting of a criminal trial, or did it go further and suggest that other rights having a constitutional dimension could qualify or indeed if sufficiently pressing, overbear the general Article 34.1 obligation to administer justice in public. That in essence has been the central issue in this case. The Court of Appeal took the view that the decision in Irish Times established a broad principle that the literal words of Article 34.1 could be outweighed by a sufficiently important interest, a test the Court considered had been met in this case.
30 The appellant newspaper argued for a narrow reading of the Irish Times decision. It was argued that when carefully construed the decision was indeed wholly consistent with In re R. Ltd. in that the only possible ground for permitting any departure from the rule of public hearing was where it would not be possible to administer justice at all between the parties otherwise. The type of constraint envisaged and permissible after the Irish Times case, was a requirement for delay in the reporting of the voir dire, or of a trial where a separate trial had been ordered and was pending, could be explained on this basis. The newspaper argued that there was no authority for a general balancing exercise where other constitutional rights could outweigh the Article 34.1 provision. As counsel put it, Article 34.1 was part of the constitutional architecture: it was a fixed point in the design of the Constitution, and it was not available for balancing, qualification or bartering, any more than the requirements of an independent judiciary (Article 35.2) or indeed the obligation itself of a trial in due course of law under Article 38. The newspaper also argued that if it was permissible to balance Article 34.1 against other constitutional rights, then that could lead to a wholesale diminution of a fundamental obligation of a public hearing. Furthermore, if a case for hearing other than in public could be established by the actions of a litigant themselves, and by an intervener such as the Commissioner here maintaining that otherwise she would withhold permission for the giving of evidence which would contravene the Official Secrets Act, then that would be a wholly unacceptable departure since it would permit parties to manipulate matters to secure a hearing in private.
31 The Commissioner for her part adopted the analysis of the Court of Appeal. She argued that the decision in the Irish Times case could not be read in so limited a fashion. Clearly it extended beyond the criminal process which was merely the context in which it was decided. If the requirement of the administration of justice was a factor which justified a departure from the principle of a hearing in public under Article 34.1, then those requirements could equally arise in a civil case as well. If it was permissible to depart even partially from a requirement of a hearing in public, as was clearly contemplated in Irish Times case, in the case of delayed reporting or perhaps anonymised reporting, then it followed then at least in principle a greater departure was possible, up to and including the holding of the trial in camera. If a consideration such as the administration of justice and the right of fair procedures could be sufficiently weighty to require some departure from the Article 34.1 obligation, then in principle there was no reason why other constitutional values could not also be weighed in the balance. The right to life itself was engaged here and was plainly of very considerable weight.
32 Counsel for the plaintiffs, while supporting the Commissioners argument, took a more pragmatic line. It was argued that the substance of the case revolved around the working of the Witness Protection Programme. If that could not be conducted in public without the significant threat of possible prosecution under the Offences Against the State Act, then as a practical matter it was impossible to see how justice could be done in the case. Thus, even if the newspapers were correct to assert that the only basis upon which it was possible to depart from Article 34.1 was where justice could not be done otherwise, then that test was nevertheless was satisfied in this case.
Discussion
33 Much, indeed almost the entirety, of the argument made on behalf of the newspaper was essentially independent of its status as defendants in the proceedings. The argument that Article 34.1 is a fundamental constitutional obligation is one which could have been advanced by the newspapers or any other newspaper merely seeking to cover the trial. Counsel did advert to the argument that without the possibility of publicity, they would be deprived of the chance that further witnesses might come forward, but that was in essence a makeweight argument. However, it is conceivable that the interests of the defendants and the media more generally may not be perfectly aligned since if the order of the Court of Appeal is upheld, the defendants will be admitted to the hearing while other media will be excluded. In any event, it is clear there are interests involved other than those of the particular parties. I should therefore make it clear that this decision relates only to the dispute between the defendants, the plaintiffs and the Commissioner. It is conceivable that representatives of the media might wish to raise arguments from the perspective of outlets wishing to cover a trial and that should not be precluded.
34 I should also observe that no issue was raised in this Court, or it appears in the Court of Appeal, as to the joinder of the Commissioner as a party to the proceedings, and accordingly I make no observation on that procedure. On the view I take of this case, it is not necessary to express any view on that issue.
35 While I accept much of the argument which has been submitted on behalf of the newspaper, I think it must be acknowledged that there is some tension between the approach in In re R. Ltd. and that in Irish Times v. Ireland. In my view, both decisions contain important statements of principle which however may need to be refined in the light of further experience.
36 I have reservations about the language of balancing of rights and the hierarchy of rights referred to in the Irish Times case and relied on in the judgment of the Court of Appeal. The Constitution does not itself rank the rights and obligations it provides for, nor does it tell us how to divine any hierarchy. The obligation of a court is to uphold all the provisions of the Constitution. Furthermore, as Denham J. observed in the Irish Times case, the ranking of rights does not in any event answer the question in any particular case. An important further consideration is the extent to which the right is impaired. In theory if such an approach is taken, a court would have to try to weigh a complete denial of a lower ranked right against a lesser intrusion on a higher ranked right. The Constitution gives no guidance as to how this might be done. In truth the Constitution should not be too readily interpreted to require any hierarchical ranking of rights with the consequent possibility of subordination of one right to another. The Constitution was intended to function harmoniously, and where there were points of potential conflict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provision. There is a danger that this approach could lead to an overriding of constitutional rights where their application is inconvenient, or when asserted by unpopular and undeserving parties. It should be remembered that essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of judges themselves. It is easy to express any argument in constitutional terms and if by that route Article 34.1 or any other constitutional provision could be qualified or disapplied, the Constitution would lose much force.
37 Much of the difficulty however with this language from Irish Times, can in turn be traced to an over-rigid approach derived from the decision in In re R. Ltd. The rule, that justice must be administered in public except in specific cases provided by post-1937 legislation, and furthermore only where a court was satisfied that justice could not be done otherwise, has the advantage of appearing both simple and principled. However, it had the unfortunate consequence that it has been understood as imposing an almost blanket rule which precluded even minor adjustments of the obligation such as permitting a litigant to use a pseudonym, or initials, or directions that parties not be identified. Furthermore, it is difficult to reconcile with the obviously sensible and necessary course of not reporting on the contents of the voir dire or separate trials in the criminal context. A strict reading of In re R. Ltd. would however suggest that this could only be achieved by voluntary acquiescence of the press, and that it could never be ordered by the court. Such a restriction could not be justified solely on the grounds that justice could not be administered otherwise, since by definition it could not be predicted in advance what would be published and whether it would be so significant as to constitute a contempt. In any event, both the common law and the Constitution lean heavily and properly against the prior restraint of speech and should do so particularly when the speech is itself a component in the performance of a constitutional obligation.
38 Even if the sole test is that contended for by counsel for the newspaper, that it must be shown that justice cannot be administered otherwise than in public, then I think it is possible to decide this case on the narrow basis argued by counsel for the plaintiffs. It is unavoidable that if this trial proceeds, it will involve considerable amounts of evidence being given about the operation of the Witness Protection Programme. There must be however a real possibility that it will be contended that this evidence is privileged or in any event cannot be given without committing an offence. If central witnesses do not give evidence at all, or if forced, do so under the constraint that they risk prosecution, then any trial would be very far from the norm, and if the evidence is absolutely central to the case as it is here, then the proceedings could be so distorted as to fall short of the requirements of the administration of justice. It might also be possible to take a broader view of what is constituted by the administration of justice. I do not think it can be said that a process that requires persons to put at risk not just their own safety and life, but that of their families, could be said to be consistent with the administration of justice as envisaged by the Constitution. If so then on either approach it is possible within the approach contemplated in In re R. Ltd. to provide for a hearing other than in public, at least in principle.
39 However, in my view this is a somewhat artificial approach and stems from aspects of the jurisprudence which should be addressed. In my view, the fact that claims can be made under the Official Secrets Act or for privilege in the public interest, are not matters to be taken into account merely at the level of the difficulties they might create for the running of the trial, but rather illustrate the fact that the subject matter of these proceedings involves important and sensitive issues of national security, which in the context of any other piece of litigation would be considered to be privileged from disclosure. Moreover those issues are sensitive not merely because there is a public interest involved, but because that interest is not just in securing evidence, but also in protecting the lives of persons involved. Some of the difficulty here stems from the view that the only exceptions which Article 34.1 is subject to, are those contained in a post-1937 statute. Once it is recognised however, as indeed it was by Keane J. in the Irish Times case and by Lord Scarman in the Attorney General v. Leveller Magazine Ltd. [1979] 1 All E.R. 745, that there is a continuing common law power to direct a trial in camera where it is required, and that such a course could be particularly justified when constitutional values are engaged, then much of the difficulty is removed. Indeed in the Leveller case, Lord Scarman accepted that this power could be exercised in cases involving areas of national security. However any such claim and can only be determined by the courts and must be closely and jealously scrutinised. It is not necessary to say that the public interest national security or the rights of the life of persons involved in the programme overbears Article 34.1. Rather Article 34.1 expressly contemplates circumstances in which trial in public may be departed from. It should be said that this approach is not radically different from that which has been applied hitherto, and most of not all cases would be decided in the same way. However this approach has the benefit that any departure from the principle of open justice under Article 34.1 is and must be exceptional, and therefore be strictly construed and applied. There must be no other measure sufficient to protect the legitimate interest involved. One benefit of this approach may be that it will be necessary to consider steps short of a hearing in camera such as directing the requesting the parties are not identified. It is noteworthy in this regard that the ECHR is willing to permit this much more readily than was the practice in Irish courts. See the interesting discussion in D v. Ireland (2006) 43 E.H.R.R. SE16 at paragraph 98 , and the recent case of DF v. Commissioner of An Garda Síochána [2015] IESC 44, paragraph 26 per Charleton J.
40 The absence of a statutory provision is not however irrelevant. Where the Oireachtas has considered it appropriate to permit the possibility of a trial in private in respect of certain subject matters, that is an important legislative judgment on the importance of the subject matter. Where the Oireachtas has not seen fit to legislate for the possibility of a hearing in camera, then the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it is shown that the interests involved are particularly important, and the necessity is truly compelling. Here that is demonstrated by the fact that publicity would self-evidently compromise the effectiveness of the Witness Security Programme and moreover put the lives of persons within that programme at risk. This does not involve a naive or credulous approach to claims of security: rather as observed above it follows from the nature of a witness protection programme.
41 In my view it is not necessary to read Article 34.1 down to the point where the only exception permissible in respect of any subject matter, is where it can be demonstrated that justice simply cannot be done otherwise. While that consideration is certainly a thread running through many of the cases, and where present will certainly justify a hearing other than in public, it cannot explain them all. A couple should not have to go to the lengths of contemplating withdrawing an application for a divorce, separation, or for custody of children, to secure a hearing in private, of personal matters. It is true that the interest of administration of justice between the parties is engaged in such a case, but so too is the importance of protecting family life and of avoiding the insult to the dignity of the individual by requiring that intimate matters be aired in a public hearing, with a risk of wider publicity. Conversely, one party to a relationship ought not to be able to bring pressure to bear on the other and perhaps more sensitive partner, by demanding a hearing in public as a constitutional entitlement. In a case where justice cannot be done or cannot be done without damage to important constitutional values, it is appropriate to provide for the possibility of a hearing other than in public, albeit that it is a matter for the court to decide whether any departure for the standard of trial full trial in public is required and if so what measures are the minimum necessary. Similarly it may be possible to conduct wardship matters in public but to do so pay too high a price in terms of basic ideas of human dignity. If a person suffers from a disability so as not to be able to manage their affairs and thus requiring the court to exercise a parental jurisdiction, there is no reason why those affairs, unlike the affairs of any other citizen, should be ventilated in public. The case of secret processes is another example which cannot be made to fit easily into the strict pattern of hearings in private only when it can be demonstrated that justice cannot be done otherwise. In such a case, justice can be done, at least between the parties in the sense that damages can be awarded and an injunction granted. But if so, it is at an unacceptable price of damage to an interest which by definition the law considers worthy of protection. If it is said that a hearing in private is justified in such a case but only because justice could not be done otherwise in the sense that litigation to protect an interest should not put it at risk, then in truth the concept of the administration of justice is being broadened significantly beyond the question of the resolution of the specific issue raised between the parties.
42 The fact that Article 34.1 states in explicit terms any hearing in private is an exception to a fundamental constitutional rule means that any such exception much be strictly construed. A demonstration that it is not possible to hear and determine a case fairly is certainly a powerful consideration justifying a hearing other than in public, but it cannot be the sole touchstone of the circumstances in which it is appropriate to have a hearing in private. In the area of the public interest and national security, for example a State party should not be required to choose between maintaining national security at a cost of failing to prosecute one claim or conceding another, and defending or prosecuting a case at the price of damage to an important public interest, if it is possible to administer justice without destruction of that public interest.
43 In this case the perceived obligation to find and deploy a constitutional right of sufficient weight to overbear the Article 34.1 guarantee meant that the Commissioner adopted a somewhat diffuse approach invoking the Official Secrets Act, the practicality of the trial, and the right to life of both participants in the Witness Protection Programme and officers and others who assisted in the administration of the programme. However the interest most at stake in these proceedings is the public interest in maintaining the security and confidentiality of a functioning Witness Protection Programme. If that public interest is not squarely identified, it may not be properly assessed. If every case must be forced into the rubric of justice cannot be done otherwise, there is a risk of error in some cases. For example, there is something grotesque about the argument made in the related context of s.27 of the Civil Law Miscellaneous Provisions Act 2008, that because a person was so young or suffered from such a severe mental disability, that they could not suffer “undue stress” by being identified in proceedings, and therefore it would be permissible to identify them publicly.
44 The legal issue for this Court was presented in a very stark and binary form. The only options canvassed were a hearing fully in public or one completely in camera. I do not consider that this is or can be the correct approach. In any event, since any departure from the rule of hearing in public is an exception which must be strictly justified, it is in my view necessary to consider the matter incrementally, and to ask whether any lesser steps would meet any legitimate interests involved. That may involve considerations of anonymising witnesses or orders that witnesses may not be photographed or identified in any way, or whether any part of the hearing may be conducted in public, or whether it is possible in respect of any hearing in private, that a redacted transcript of proceedings can be released to the media. Given the fact that the plaintiffs are already identified by name, and that there has been a range of interlocutory applications in this case, and furthermore that the trial of this case would necessarily involve disclosure of matters to at least the 12 jurors and any witnesses from the newspapers who were in attendance, it would in my view be incumbent on a court, even if satisfied, that there was a case for some exception from the general principle to consider the precise steps which might be taken in this case, starting from the proposition that any provision permitting trial other than in public is an exception to a general rule of fundamental importance. Nothing more should be permitted than is demonstrated to be necessary to avoid the damage to the public interest involved. As already observed, this is a matter which could be the subject of further submissions to the trial judge by the parties and if appropriate representatives of the media more generally.
45 However, the net issue presented for determination by this Court can be reduced to the question whether this trial must be conducted fully in public, or whether any departure from that principle may be permitted. In my view, the public interest in the functioning of the Witness Protection Programme and the consequent protection of the lives of participants in it and officers and staff mean that the court’s power to control its own powers must extend to departing from a hearing in public in this case at least to some extent. While I have sought to analyse this in terms of Article 34.1, the same result could, and in most if not all cases would, be arrived at by application of the language of In re R. Ltd. or indeed Irish Times v. Ireland. Accordingly, I would summarise the principles as follows:
(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.
(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;
(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;
(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;
(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. Here that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme.
(vi) While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.
(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera.
46 This appeal raised a single issue of principle. On that issue I would dismiss the newspaper’s appeal and would uphold the order of the Court of Appeal, but on substantially different and narrower grounds. However it remains open to the parties to address the trial court on these matters in the light of the development of the case and is a matter which in any event the trial judge should keep under review. I would therefore affirm the order of the Court of Appeal that the trial in this case may be heard otherwise than in public, with liberty to the parties and any other media organisation to apply to the trial judge to limit or vary that order either in general, or in relation to specific issues or aspects of the case. Finally I should say that the Court directed that this appeal be heard in public and this judgment has not been subject to redaction in any way.
