The Court of Appeal has confirmed that the fundamental constitutional principle of the administration of justice in public can be overborne in circumstances not provided for by statute in either civil or criminal proceedings, but only in circumstances of dire need in which major constitutional rights and interests are in peril to a significant degree.
Article 34.1 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed in the manner provided by the Constitution and shall be administered in public, “save in such special and limited cases as may be prescribed by law”.
In the “unusual, even unique” case of Gilchrist & Rogers v Sunday Newspapers Ltd & Ors1 the Court of Appeal acceded to an application brought by the Commissioner of An Garda Síochána (the “Commissioner”), to be joined as a notice party to defamation proceedings, and to have the hearing conducted behind closed doors, with no publicity except for the verdict.
The defamation action in this case arose out of previous litigation issued by a protected witness in the State’s Witness Security Scheme (the “Scheme”) operated by an Garda Síochána. The Scheme is a non-statutory programme which the Commissioner is ultimately responsible for. It was alleged in those previous proceedings that the relevant agencies had breached agreements and undertakings promised to the witness. That application was held in private and was ultimately dismissed. The newspaper articles at issue in this case concerned those earlier proceedings and the roles allegedly played by the plaintiffs. The plaintiffs, a married couple, were involved with the Scheme as an operative and a psychotherapist providing professional services, and argued that the articles were defamatory.
The Court of Appeal reviewed the jurisprudence on this issue, in particular the case of Irish Times Ltd v Ireland2. That case concerned a criminal trial and is authority for the principle that the strict application of Article 34.1 can be departed from in exceptional circumstances. The crucial point identified by the Court of Appeal in this case was that the Supreme Court in the Irish Times case endorsed a departure from Article 34.1, finding that the principle under the Article is not confined to the rights of an accused to a fair trial in criminal proceedings. The Court of Appeal found that that would be too narrow a construction of the principle. The President concluded that the case law endorses a departure from the strict rule of Article 34.1 where the competing interest that is in conflict with that Article is of sufficient status in the ranking of constitutional rights to warrant such a departure, whether the proceedings are civil or criminal.
It is therefore not the fact that a trial is criminal that is decisive, but rather that the competing interest concerned is of high importance in the constitutional structure. The Court found that the principle in Article 34.1 may only be overborne 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”.
The Court was satisfied that the test was met in this case, involving as it did issues of the highest degree of national and individual importance.
This case provides valuable guidance for practitioners on the evidence that the Courts will require in any effort to apply for a departure from the general and fundamental principle that justice be administered in public.