The Supreme Court has upheld a Court of Appeal ruling that a defamation trial can be held in camera, to protect the workings of the State’s witness protection programme and people involved in it.
The ruling is a significant interpretation of Article 34.1 of the Constitution which provides that “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.”
On the application of the Garda Commissioner for the defamation hearing not to be held in public, the Court of Appeal had determined that the Commissioner established that there was a genuine threat to “a practically unique catalogue of public and individual Constitutional rights and interests sufficient to outweigh the indisputably important requirements of Article 34.1”, if the defamation trial was held in open court as normal.
The Supreme Court agreed. Judge O’Donnell said that “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.”
Judge O Donnell noted that “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.”
“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.”
Judge O’Donnell summarised the relevant 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.
Sunday Newspapers Limited & ors -v- Gilchrist and Rogers [2017] IESC 18
Judgment available at
http://www.courts.ie/Judgments.nsf/0/126C38BD07EEF715802580ED003DAFE0