Sunday Newspapers v Gilchrist & Rogers: Inherent jurisdiction for in camera hearing: interests are particularly important and necessity is truly compelling

Here, the Supreme Court held that:

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.

 

Background

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 and alleged that they had an affair.

The Commissioner applied to be joined as notice party and sought that proceedings be conducted in camera. 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 In Re R Ltd [1989] IR 126 the Supreme Court interpreted Article 34.1 very narrowly. In the majority judgment, Walsh J held that “law” in Article 34.1 means legislation enacted since 1937.

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 (here) 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.

The Supreme Court granted Sunday Newspapers leave to appeal that decision.

 

Supreme Court

O’Donnell J wrote the judgment for the Court. Dismissing Sunday Newspapers’ appeal, O’Donnell J found that “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” [25], and set out the criteria for exercising that jurisdiction:

(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.

Applying those principles to this case, O’Donnell J stated that “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” [45].

 

Court’s conclusion

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.

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