New Appeal: Must Article 34.1 rights, justice administered in open courts, be balanced against other constitutional rights?

In these joint determinations (Rogers v Sunday Newspapers & Gilchrist v Sunday Newspapers), the Supreme Court granted Sunday Newspapers leave to appeal the Court of Appeal’s orders that the Garda Commissioner be joined as notice party to these defamation proceedings and that the proceedings be conducted otherwise than in public (judgment). The Supreme Court granted leave on two questions:

(a) whether the Court of Appeal erred in balancing the constitutional requirement set out in Article 34.1 of Bunreacht na hÉireann that justice be administered in public and the other constitutional rights asserted in this case; and

(b) whether, in the event that some interference with the requirements set out in Article 34.1 is constitutionally justified in the circumstances of this case, the measures adopted by the Court of Appeal are appropriate in all the circumstances of the case.


Rogers and Gilchrist issued High Court defamation proceedings against Sunday Newspapers. The articles complained of named one of the plaintiffs as a garda handler for the witness protection scheme and the other as a doctor who assessed witnesses for the scheme.

The Commissioner applied to be joined as notice party and sought that proceedings be conducted otherwise than in public. The Commissioner submitted that evidence may relate to “issues of public, national importance, and the protection of life and the interests of State security and public safety”, CoA [3]. The High Court joined the Commissioner and granted her orders restricting the reporting of evidence from the trial. The Commissioner and Sunday Newspapers both appealed that decision to the Court of Appeal.

Article 34.1 0f the Constitution states:

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 Irish Times & Ors v Ireland & Ors [1998] 1 IR 359, the Supreme Court recognised that the courts have jurisdiction in some exceptional circumstances to direct that criminal trials be conducted otherwise than in public, even in the absence of legislative provision.

Allowing the Commissioner’s appeal, the Court of Appeal applied a balancing test between the rights protected by Article 34.1 and other rights protected by the Constitution, such as the right to life, State security and public safety. Sunday Newspapers sought leave of the Supreme Court to appeal that decision.

Granting leave to appeal, the Supreme Court stated:

5.6 In reaching the conclusion for the purposes of this determination that it has been demonstrated that the decision of the Court of Appeal involves a matter of general public importance, it is considered that the decision of the Court of Appeal did not involve the application of well established principles to the particular procedural and factual context in which the Commissioner has sought to intervene in and have the Plaintiff’s plenary action heard otherwise than in public. First, the fact that the Commissioner invokes against the parties to the plenary action the Act of 1963 as regards evidence which the parties may seek to adduce in relation to the Witness Security Programme introduces a very unusual feature on the Commissioner’s application. Secondly, a further unusual procedural aspect of the manner in which the courts at each level are required to consider the application of Article 34.1 to the hearing of the Plaintiff’s plenary action for defamation against the Defendants is that the application that the hearing be otherwise than in public was instigated by the Commissioner, who is not a party to the proceedings. Thirdly, the Commissioner’s application relates to civil proceedings, not to criminal proceedings. The presence of the foregoing factors, all or some of which may arise in other cases in which the application of Article 34.1 has to be considered by the courts, which have not been specifically addressed by this Court in any previous decision, render the decision of the Court of Appeal of general public importance.

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