Justice in Public

The principle that courts should sit in public is a long-standing at common law and is implicitly recognised by the Constitution. It is expressly recognised by the European Convention on Human Rights. However, there are long-standing and logically justifiable exceptions to the principle that courts hear cases in public.

The principle that courts should sit in public is designed to maintain public confidence in the administration of justice. There are cases where other interests prevail over this more general principle. In-camera hearings, i.e. in chamber hearings and those without the public present, are used where the anonymity of the parties or witnesses is protected for some greater public interest. In these cases, the general principle that justice should be administered in public yields to other more pressing interests.

Exceptions I

Certain types of hearings are required by statute to be heard otherwise than in public. In many, if not most such cases, there is provision for bona fide representatives of the press to attend. In publishing information, they must keep the identity of parties and certain other matters confidential. There are quite elaborate provisions in some legislation regarding offences for breach of these provisions by the members of the media.

Most family law proceedings are held in camera. There has been recent provision for the greater reporting of cases while preserving anonymity the justification is the public interest in consistency in family law determinations and in knowing the criteria applied by the courts in particular circumstances.

It is contempt of court to publish information where proceedings are required, are held in camera, without the prior consent of the court. The court can make such order as it considers appropriate to protect against unauthorised disclosure.

In some cases, there is judicial discretion in relation to holding hearings n-camera. The court decides in certain types of case, whether documentation from the proceedings may be disclosed to certain public bodies and persons if the disclosure is required to protect the legitimate interest of parties,

Legislation provides that cases may be heard otherwise than in public in certain types of matters including matters of an urgent nature, by way of habeas corpus, bail, prohibition or injunction, minor matters involving children, matrimonial matters, proceedings that involve the disclosure of secret manufacturing processes and corporate oppression proceedings.

Exceptions II

There is general discretion for courts to preserve anonymity in appropriate cases. Where a person may suffer prejudice, if his or her identity was disclosed, the court may order the use of a fictional or fictitious name or other measures to preserve privacy.

The Civil law (Miscellaneous Provisions) Act 2008 provides that an application may be made in any civil proceedings to prohibit broadcasting or other publication of a matter which might identify a party or witnesses having a medical condition. The court may grant an order if it is satisfied that it is likely to cause undue stress, not to do so. The court will balance the interests of privacy and other legitimate interests, against the interests of the public.

Certain types of the case do not constitute the administration of justice at all and are not required to be heard in public. This includes, for example, certain proceedings in insolvency matters, private depositions and certain applications to court by inspectors undertaking company investigations.

Nature of Civil Proceedings

Historically, civil trials were determined by the verdict of a jury. In Murphy v Hennessy, it was implied that there was no constitutional right to a trial by jury in a civil case. The Courts Act, 1988 severely limited the categories of civil cases to which there was a right to trial by jury.

Proceedings under the Proceeds of Crime Act are civil in nature. The courts have held that it is permissible in these cases to shift the onus of proof entirely, to respondents to prove the source of their funds. The Supreme Court decision in Murphy v GM that a reversal of the onus of proof even in a civil matter was permissible in principle and justified in a case where the respondent would have unique knowledge of the source of funds.

Evidence & Witnesses

In some proceedings, the evidence is given by affidavits, only. However, the judge usually has the discretion to put the matter to a full hearing. There is no right to a full hearing without good cases. In summary proceedings for debt, the judge will determine whether there is a case fit to go to a full hearing.

The Supreme Court, in the above case, Murphy v GM, indicated that the use of hearsay evidence was not unconstitutional in itself. The hearsay evidence rule continues almost unreformed in Ireland, unlike the position in Northern Ireland and England and Wales.

Witnesses generally give evidence in open court. However, in cases involving children and serious criminal offences, there is provision for anonymity of witnesses and the remote giving of evidence. This has been held to be consistent with fair procedures in a challenge to the Proceeds of Crime Act.


In SvS, the common law presumption that a child born to a married woman was a child of her husband was held to be inconsistent with modern procedures, due process and social reality. Its effect as a presumption was to make it a virtual rule of law.

See separately the sections in relation to the administration of justice. It has been held to be contrary to the Constitution where a statement of the executive typically, a Garda Síochána purported to make the matter conclusive.

Similarly, legislation that goes further than creating a presumption and precludes the possibility of rebutting evidence may be held to be abb unconstitutional trespassing by the executive on the role of the judiciary, in the administration of justice.

Reasons for Decision

At common law, there was no requirement for judges to give reason to decisions. In practice, superior courts frequently issue judgments that expounded the law in the area concerned.

The European Convention on Human Rights has been held to require that the requirement of a fair trial includes that reasons be given. This is particularly so, where there is a right of appeal so that the person is able to consider possible grounds of appeal.

In the absence of reasons, the appeals body is poorly placed to reconsider the matter without a new hearing.


The Constitution provides that there is a right of appeal from most decisions of the District Court and Circuit Court in exercising civil jurisdiction. Where they hear appeals from administrative bodies, their decision may be final.

Appeals are generally limited to the matters heard in the first instance. There may be exceptions where it is in the interest of justice. Exceptionally new issues of law may be raised on appeal for the first time. However, this is the exception and not the rule.

An appellate court decision once given is final. It concludes the issues between the parties, definitively.

Judicial Review

The right of judicial review of the actions of public bodies is not expressly protected by the Constitution. However, it is likely to be implicit in respect of most classes of decision. It has a critical function in ensuring that the executive acts in accordance with the law.

The State can be liable for civil obligations in the same manner as any other entity. Accordingly, it can be liable for breach of contract, civil wrongs and restitution.

Commonly, there will be a right to appeal against the decisions of public bodies to a particular body or in some cases to a court. This is separate from the judicial review procedure, which involves a challenge to the legality, rather than the merits of the decision.

Although the Oireachtas is unlikely to be able to preclude judicial review, it may restrict it. Challenges to provisions for short time limit requirements and for showing a prima facie case upfront have been held to be valid in the reference of the Immigration Act 1999 to the Supreme Court.

Notwithstanding that an Act does not expressly provide for fair procedures, constitutional considerations will require that it be interpreted that the decision-maker acts in accordance with fair procedures where the decision or matter affects the liberty, reputation, property or good name of citizens. A right to be heard may be required where the matter impacts upon a person’s civil rights and obligations.

In Meadows v Minister for Justice (2010), the question of law referred to the Supreme Court was whether in determining the reasonableness of an administrative decision, which affects fundamental rights, it is correct to apply the traditional reasonableness, standard applicable generally in respect of judicial review. Two judges appeared to say yes, whereas two judges said no. The fifth judge was not sufficiently clear as to whether a higher standard was required, where constitutional rights were impacted.

It appears that fundamental European Union rights and European Convention on Human rights are concerned, a more exacting standard of judicial review is required than applies to general governmental decisions. The courts have inherent rights of sanction to uphold their authority. Interference with the administration of justice is criminal contempt. The courts may punish contempt summarily.

It has been held that there is no constitutional right to a jury in such a case as to so do would undermine the inherent authority of courts to enforce their own order.


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Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.

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