Freedom of Expression I
Cases
The State (Lynch) v Cooney
[1983] ILRM 89,
JUDGMENT OF THE COURT deliverd on the 28th July1982by O’HIGGINS C.J.
In these proceedings Sean Lynch (the “respondent”) haschallenged by means of certiorari an Order made by the first-namedappellant (hereinafter called the Minister) on a number of grounds whichinclude the validity having regard to the provisions of the Constitutionof the statutory provision under which the Order purports to have beenmade. The Order is the Broadcasting Authority Act, 1960(section 31) (No. 2) Order, 1982, [S.I. 21 of 1982] and the staturoryprovision under which it purports to have been made and theconstitutional validity of which is challenged, is section 31(1) of theBroadcasting Authority Act, 1960, as inserted by section 16 of the Broadcasting Authority (Amendment)Act, 1976. This judgment will give the decision of the Court on the question ofthe constitutional validity so raised.
The other issues raised by the respondent will be dealt with in separatejudgments by members of the Court.
The respondent was one of seven candidates standing on behalf of theSinn Féin party in the general election of February 1982. In itscoverage of that election Radio Telefis Éireann (hereinafterreferred to as RTE), in accordance with established practice, allowedtime on television and radio for political broadcasts by the differentpolitical parties. The time so allowed was regulated by the size of theparties contesting the election. In relation to the smaller parties, ofwhich Sinn Féin was one, it was necessary to have seven or morecandidates in the field to qualify for broadcasting time. Whennominations closed, Sinn Féin had seven candidates and on thisbasis RTE agreed to allow to that party one two-minute broadcast on eachof its five outlets (two television and three radio). These broadcastswere to be transmitted on the 10th February 1982 on television and onthe 11th February 1982 onradio. The respondent was selected by his party to make these broadcastson its behalf.
Prior to allowing time to Sinn Féin for such broadcasts RTE hadconsidered whether it was legally entitled to do so, having regard tothe provisions of a previous Ministerial Order, S.I. No. 21 of 1981.This Order had been made by the Minister under the provisions of section31(1) and directed RIE “to refrain from broadcasting any matterwhich is an interview or report of an interview, with a spokesmanfor”a number of named organisations including “theorganisation styling itself Provisional Sinn Féin.”
At this point it is necessary to say that the reference to ProvisionalSinn Féin is in fact a reference to the Sinn Féein party.Having been satisfied, on the advice which it received, that theallowance of time to Sinn Féin for an election broadcast did notoffend against the terms of this Order, RTE extended the invitation toSinn Féin and allowed the time already mentioned for thebroadcasts on its five broadcastingoutlets. When the decision to this effect was announced the Ministermade the Order which is challenged in these proceedings. It was made onthe 9th February 1982 and resulted in the proposed broadcasts not beingtransmitted. The relevant portion of the Order is in the followingterms:
2 “(2) Radio Telefls Éireann is hereby directed torefrain from broadcasting any matter which is-
(a) a broadcast, whether purporting to be a political partybroadcast or not, made by, or on behalf of, or advocating, offering orinviting support for, the organisation styling itself Provisional SinnFéin,
(b) a broadcast by any person or persons representing, or purportingto represent, the said organisation.”
This Order was made by the Minister in apparent exercise of the powersconferred on him by section 31(1) of the Broadcasting Authority Act, 1960, as amended. This subsection, so amended, reads as follows:
2 “(1) Where the Minister is of the opinion that thebroadcasting of a particular matter or any matter of a particular classwould be likely to promote, or incite to, crime or would tend toundermine the authority of the State, he may byorder direct the Authority to refrain from broadcasting the matter orany matter of the particular class, and the Authority shall comply withthe order.
3 (1A) An order under subsection (1) of this section shall remain inforce for such period not exceeding twelve months as is specified in theorder and the period for which the order is to remain in force may beextended or further extended by an order made by the Minister or by aresolution passed by both Houses of the Oireachtas providing for itsextension; provided that the period for which an order under the saidsubsection (1) is extended or further extended by an order or resolutionunder this subsection shall not exceed a period of twelve months.
4 (IB) Every order made by the Minister under this section shall belaid before each House of the Oireachtas as soon as may be after it ismade and, if a resolution annulling the order is passed by either suchHouse, within the next twenty-one days on which that House has sat afterthe order is laid before it, the order shall be annulled accordingly butwithout prejudice to its validity prior to the annullment.”
The validity of this subsection is challenged in these proceedings. Thischallenge is based on the contention that it constitutes an infringementof thecitizen’s right freely to express convictions and opinions as providedfor in Article 40.6.1 of the Constitution. The respondent’s submissionsas to the effect of the subsection may be summarised as follows:
a 1. The Minister in making an Order under the subsection maydiscriminate in an unconstitutional manner against some citizens and maymake an Order inconsistent with the democratic nature of the State.
b 2. The subsection contains no standards or criteria for determiningwhen, how, or to what extent, a given use of an organ of public opinionis, or may be deemed to be, calculated to undermine public order ormorality, or the authority of the State.
c 3. The exercise by the Minister of his power under the subsectionis not subject to appeal in any form, save only to the extent that itmay be annulled by either House of the Oireachtas when such House is insession and remains in session for the requisite period.
d 4. The exercise by the Minister of his power under the subsectionis not subject to any procedural safeguardsprovided by the Oireachtas for the purpose of ensuring that the saidpower is exercised in accordance with the requirements of constitutionaljustice and is not exercised arbitrarily.
These submissions depend on the correctness of a claim made by therespondent, which is pivotal to his entire case, that the Minister’sopinion expressed in the Order which he makes is not reviewable by thecourts and that the Minister is accordingly given an absolute andunfettered discretion to act as he thinks proper. In the High Court Mr.Justice O’Hanlon accepted this claim by the respondent. He said in thecourse of his judgment:
“The amended version of section 31 gives the Minister afar-reaching power of veto over material for broadcasting which is not, prima facie, susceptible of control by the courts or by anyother body, save the Houses of the Oireachtas, once it appears that theMinister has formed an opinion of the nature mentioned in thesubsection.”
He was particularly influenced by the use of the word”opinion” in the subsection and referred to a passagein the judgment of the former Supreme Court in In Re Article 26 ofthe Constitution and the Offences Against the State (Amendment)Bill 1940, 1940 I.R. 470, in which Sullivan C.J. said (at p.479):
“In the opinion of this Court neither s. 4 nor s. 5 of the Billcreates or purports to create a criminal offence. The only essentialpreliminary to the exercise by a Minister of the powers contained in s.4 is that he should have formed opinions on the matters specificallymentioned in the section. The validity of such opinions is not a matterthat could be questioned in any court. Having formed such opinions, theMinister is entitled to make an order for detention; but this Court isof opinion that the detention is not in the nature of punishment, but isa precautionary measure taken for the purpose of preserving the publicpeace and order and the security of the State …”
While it is not mentioned by Mr. Justice O’Hanlon, this view was laterfollowed by the same court in In re ÓLaighléis 1957 I.R. 93, [The learned trial Judgewent on to say:
“I am not aware of any case where the use of the expression”is of opinion” has admitted of judicial review into thereasonableness of thedecision made, and the decision of the Supreme Court in the case alreadycited would appear to be conclusive against any suchinterpretation.”
This reasoning led the learned trial Judge to the conclusion that thesection empowered the Minister to act in an unfettered and unreviewablemanner and that accordingly the section contravened the invokedprovisions of the Constitution.
In the opinion of this Court the learned trial Judge was mistaken inthis conclusion. While the opinion of the former Supreme Court expressedin 1940 and 1957 reflected what was then current judicial orthodoxy,judicial thinking has since undergone a change. Decisions given inrecent years show that the power of the courts to subject the exerciseof administrative powers to judicial review is seen as having a widerreach than that delimited by those decisions of 1940 and 1957. Inparticular it has been established by this Court in McDonald v. Bordna gCon 1964 I.R. 350 and East Donegal Co-Operative v.A.G. 1970 I.R. 317 that the correct approach in consideringsuch questions is first of all to construe the statute. If the statutelends itself to more than one construction, one of which would not berepugnant to the Constitution and the others of which would, there is apresumption that the Oireachtas, bound as it is not to pass legislationwhich is repugnant to the Constitution, intended only the constitutionalconstruction. It is only when no such constitutional construction isapparent or can reasonably be inferred that the court must come to theconclusion that the Oireachtas departed from its constitutional mandateand enacted legislation repugnant to the Constitution. It was in thismanner that this Court considered the effect of the word”opinion” in section 13(2) of the Electoral Act, 1963in relation to the exercise of his powers by the Registrar of PoliticalParties. (See Loftus v. Attorney General and Ors. 1979 I.R.221). In the view of the Court the tests laid down in these cases governthis matter. It is necessary to look at the general object of thelegislation.
The legislation deals with, amongst other things, the control of freedomof expression and free speech within the powers granted by Article40.6.1 of the Constitution. This provision enables the State in certaininstances to control these rights and freedoms. The basis for anyattempt at control must be, according to the Constitution, theoverriding considerations of public order and public morality. Theconstitutional provision in question refers to organs of public opinionand these must be held to include television as well as radio. It placesupon the State the obligation to ensure that these organs of publicopinion shall not be, used to undermine public order or public moralityor the authority of the State. It follows that the use of such organs ofopinion for the purpose of securing or advocating support fororganisations which seek by violence to overthrow the State or itsinstitutions is a use which is prohibited by the Constitution. Thereforeit is clearly the duty of the State to intervene to prevent broadcastson radio or televisionwhich, are aimed at such a result or which in any way would be likely tohave the effect of promoting or inciting to crime or endangering theauthority of the State. These, however, are objective determinations andobviously the fundamental rights of citizens to express freely theirconvictions and opinions cannot be curtailed or prevented on anyirrational or capricious ground. It must be presumed that when theOireachtas conferred these powers on the Minister it intended that theybe exercised only in conformity with the Constitution.
The Court is of the opinion that section 31(1) of the Broadcasting Act 1960, as amended, does not confer on the Minister the wide, unfettered andsweeping powers which have been alleged by the respondent. The Court issatisfied that the subsection does not exclude review by the courts andthat any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable.For these reasons the Court has come to the conclusion thatthe invalidity alleged to attach to subsection (1) of section 31 has notbeen established. The Court will accordingly discharge the declarationof invalidity which the learned trial Judge made.
JUDGMENT delivered on the 28th day of July 1982by O’HIGGINS C.J. [GRIFFIN J. CONCURRING] HEDERMAN AGREEING
Locus Standi
Before dealing with the other issues which arise for determination inthese proceedings and which as indicated will be the subject of separatejudgments, I think it necessary to refer to the respondent’s right orstanding to raise the question of validity which has been dealt with inthe judgment of the Court. In Cahill v. Sutton 1980 I.R. 269this Court decided that in the absence of a sufficient interest on thepart of the plaintiff as to the effect of an impugned law on his rightsor personal situation such a challenge would not be entertained. Thematter was put thus by Henchy J. at 284:
“If a citizen comes forward in a court with a claim that aparticular law has been enacted in disregard of a constitutionalrequirement, he has little reason to complain if in the normal course ofthings he is required, as a condition ofinvoking the court’s jurisdiction to strike down the law for having beenunconstitutionally made (with all the dire consequences that may onoccasion result from the vacuum created by such a decision), to showthat the impact of the impugned law on his personal situation disclosesan injury or prejudice which he has either suffered or is in imminentdanger of suffering.”
In this case the appellants contend that the respondent lacks thestanding required by this Court’s decision in Cahill v. Sutton.They contend that no right of his has been interfered with by the Ordermade under section 31(1) and that, accordingly, he is not a personaggrieved by its making and should not be heard to challenge itsvalidity. They contend that while Article 40 of the Constitutioncontains a general guarantee of freedom of speech, it does not guaranteeaccess by any particular citizen to the press, radio or television.Accordingly, they say that the prohibition of the respondent’s broadcastinvolved no breach of any (constitutional) right which he had. Theyfurther contend that the only person entitled to question the subsectionis RTE and not the respondent. I do notaccept this submission.
It is true that the Order made under section 31(1) is directed to RTEand not to the respondent or to his party. It is also true that prima facie neither the respondent nor his party had any rightof access to RTE for the purpose of making election broadcasts. However,the respondent, and, through him his party, were given such access byRTE and would have been entitled to act on the invitation extended tothem were it not for the order made by the Minister. The invitation wasnot withdrawn by RTE – it was rendered inoperable by Ministerialintervention. In such circumstances the respondent and his party weredeprived of a benefit lawfully accorded to them in the first instanceand, in my view, were entitled to complain if the deprivation wereunlawful. Accordingly, in my view, the respondent has sufficientstanding to complain that section 31(1) under which the order was made(which order deprived him of broadcasting time accorded to him by RTE)is invalid having regard to theprovisions of the Constitution.
PROCEDURE ADOPTED
I turn now to deal with the other issues which arise for determinationin these proceedings. Before doing so, however, I would like to make abrief reference to the procedure adopted by the respondent in bringingall these issues before the court. He has sought to challenge thevalidity of the order of which he complains both on the basis of theMinister’s power to make it and, alternatively, on the allegedinvalidity of the section under which the Minister purported to act. Inso doing he has used to the utmost limit the quick and effective remedyof certiorari in the face of an illegality which he alleges surroundsthe Minister’s action. While it might be preferable to have questionsconcerning the constitutionality of legislation dealt with bydeclaratory action in which the High Court, and this Court on appeal,could have the benefit of pleadings and, where necessary, submissions, Ican see no real objection to the course adopted by the respondent. Fromhis point of view, the securing of the reliefsought was of the utmost urgency and he could not, justly, be restrictedto seeking it on grounds which did not contemplate the invalidity of theenabling section. It was on the basis of similar claims for State Siderelief that questions of validity of legislation have been decided bythe High Court and this Court in the past (See e.g. State (Burke) v.Lennon 1940 I.R. 136 and State (Nicolaou) v. An BordUchtála 1966 I.R. 567). In my view, therefore, the procedureadopted by the Respondent is in the circumstances correct and entitleshim to question the validity not only of the order of which he complainsbut also of the section under which it is made.
ORDER IMPUGNED
I now turn to consider the other issues raised. Apart from, and, as analternative, to his claim that section 31(1) is invalid the respondentalso questions the validity of the Order itself. The challenge in thisrespect is based on various grounds. In the first place it is submittedthat what the order sought to prohibit did not come within the ambit ofthe enablingsection and that it had the effect of interfering with certain of therespondent’s constitutional rights. It was further submitted that theorder was made in a manner which was unfair and unjust and that it wason that account null and void. Finally, it was submitted that while theMinister may have acted in a bona fide manner, the reasons whyhe acted should not have led to action against the respondent, and tothe banning of broadcasts by him, the content of which could have beenascertained by the Minister, and which content was in fact harmless. Onthis account it was submitted that the section had been used improperlyby the Minister to make an order which was not contemplated by theprovisions. I propose to deal with these various submissions in theorder in which they have been mentioned.
I
In the first place the respondent questions whether section 31(1)authorises the making of the order which the Minister made. He contendsthat thepower to veto a broadcast is, under the section, limited to theprohibition of the broadcasting of a “particular” matter orany matter of a particular class”. These words, he submits, onlyauthorise the banning of broadcasts dealing with a named or particularsubject matter and cannot be extended to the banning of broadcasts byparticular persons or classes of persons. He alleges that this is whatthe Minister’s Order is designed to do and that it is on that accountoutside the powers conferred by the subsection. I do not accept thissubmission. The word “matter” used in the subsection is wideenough to cover a broadcast on behalf of a named political partyirrespective of its contents or any broadcast, however described, by anyperson or group of persons representing a named political party. It issuch a matter which is prohibited and the order is not directed againsta broadcast by a particular person as an individual or against any groupof individuals as such. It is directed against a broadcast on behalf ofSinn Féin or by any person or persons purporting torepresent that organisation. It seems to me that such a prohibition isfully contemplated by the subsection. Other grounds advanced for thealleged invalidity of the order were that it operated to interfere withthe respondent’s and his colleagues” rights under Article 16 andArticle 40 of the Constitution, restricted their ability to seek votesin the election, and constituted a usurpation by the Minister of RTE’sfunction to ensure fairness. I do not accept any of these grounds andregard these submissions as ill-founded. While the effect of the Ordermay have been to deprive the respondent and his colleagues of a benefitenjoyed by other political parties, this was not an interference withrights under Article 16 nor with rights under Article 40, if the Orderwas otherwise justified.
II
The respondent also complains that the Order, even if made within thepowers conferred by the subsection, was, in fact, made without regard tothe requirements of justice. This complaint is based on the allegationthat no sufficient notice of the making of the Order was given and noopportunity afforded to offer representations or advance reasons as towhy the Order should not be made or enforced. I do not regard this as arealistic submission. On the basis that he bona fide held theopinion which the Order declared that he held, the Minister was bound toact as he did. He was so bound both by the section and, as representingthe State, by the Constitution. The time was short and a decision wasurgent. There was no opportunity for debate or parley, and, indeed, topermit or seek such might, in the circumstances, have defeated the veryobject and purpose of the section. There may be many cases in whichjustice requires that those to be affected by action of this kind shouldreceive notice and he heard. I am quite satisfied that this was not oneof such cases.
III
The remaining question to be considered is whether, on the basis thatthe Minister’s opinion under section 31(1) is reviewable and that therespondent has sufficient standing to request such, there exist anygrounds forsuggesting that the Minister’s Order should be set aside. In thisrespect the Court’s only concern is to enquire whether, in using hisstatutory powers, the Minister acted reasonably in accordance with thefactual situation, as he saw it. Under the provisions of Article 40 ofthe Constitution the State is bound to ensure, inter alia, thatradio or television shall not be used to undermine public order ormorality or the authority of the State. Section 31(1) placesresponsibility for the discharging of this duty on the Minister. For hispart, the Minister has disclosed to the Court his reasons for acting ashe did. He has done so by swearing an Affidavit disclosing the factualevidence and material which he had before him, relevant to the aims,methods and aspirations of the Sinn Féin party. This evidence andmaterial included the following:
(1) An extract from “An Phoblacht”, a newspaper publishedby Sinn Féin, under the headline: “By Ballot andBullet” in the following terms:
“As it was aptly put at the Sinn Féin Árd Fheis”Who here really believes we can win the warthrough the ballot box? But will anyone here object if, with a ballotpaper in this hand and an Armalite in this hand we take power inIreland” ” (An Phoblacht 5/11/81).
(2) A report in the Irish Times of a statement by one RuaríÓ Brádaigh, the President of the Party, in the followingterms:
“The fight in the North was in grave danger of leaving the 26Counties far behind. We must show them that we want to disestablish bothStates, North and South.” (Irish Times 14/12/71).
(2) An extract from a Staff Report emanating from the ProvisionalI.R.A. and prepared before 1977, in the following terms:
“Sinn Féin should come under army organisers at all levels.Sinn Féin should employ full time organisers in big republicanareas. Sinn Féin should be radicalised (under army direction) andshould agitate around social and economic issues which attack thewelfare of the people. Sinn Féin should be directed to infiltrateother organisations to win support for and sympathy to themovement”.
[Produced at trial of one Seamus Twomey before Special Criminal Court in1977].
(4) The fact that of the eight candidates nominated bythe party for the recent general election three had been convicted ofbeing members of the I.R.A., one had been convicted of the unlawfulpossession of firearms and one was awaiting trial charged with suchoffence.
(5) The fact that the Officer Board of the party comprising eightpersons included two who had been convicted of I.R.A. membership and oneof attempting to import arms and one of causing explosions.
EVIDENCE NOT CONTROVERTED
None of these matters have been controverted or put in issue by theRespondent. This was not due to oversight or lack of opportunity. On thecontrary it was expressly stated on his behalf that he did not wish tocontrovert any of these matters. His case seemed to rest on thecontention that the actual broadcast intended to be given did notcontain and would not have contained any matter which could meritcondemnation and was in any event available for examination before beingtransmitted. While I am prepared to accept that this may be so, it seemsto me to be an irrelevant consideration. The broadcast, whatever itscontent,was intended to seek and rally support for the Sinn Féinorganisation. On the basis of the information which he had, it cannot bedoubted that the Minister had cogent grounds for believing that SinnFéin aimed at undermining the authority of the State. Anybroadcast, therefore, which sought support for such an organisationcould properly be regarded by him as being likely to promote or inciteto crime or to tend to undermine the State’s authority. It is almostunnecessary to add, or to note, that in the legal submissions lodged onbehalf of the Respondent there is an express disclaimer of anysuggestion that the Minister in making his Order acted other than in a bona fide manner. It seems abundantly clear to me that theMinister genuinely believed that he was dealing with an evil anddangerous organisation whose object was to overthrow the State and itsinstitutions, if necessary by force. A democratic State has a clear andbounden duty to protect its citizens and its institutions from those whoseek to replace law and order by force and anarchy, and thedemocratic process by the dictates of the few. In my view, it isabundantly clear that the Minister was, not only justified in formingthe opinion that he did form, but also, that he could not have formedany other. I am, therefore, of the opinion that the relief sought by theRespondent on this ground also should be refused. I am accordingly ofthe view that the various grounds upon which the Minister’s Order hasbeen assailed fail. I would allow this appeal.
JUDGMENT28″ July 1982 walshJ.
Radio Iarnrod is under no statutory or other obligation totransmit political broadcasts but is entitled to do so. The practicewhich evolved for the recent general election was that any party havingat least seven candidates nominated would be entitled to some time onboth television and radio. The Authority was advised that prohibition oninterviews etc. with members of the Sinn Fein party did not cover partypolitical broadcasts and I think they were correctly so advised. Havingregard to the relative sizes of the various political parties puttingforward candidates in the election the RTE Authority decided to allottwo minutes” television time and two minutes” broadcastingtime on its various channels for two spokesmen for the Sinn Fein party.This decision was conveyed to the Sinn Fein party. The plaintiff, whowas one of their candidates, was chosen to be one of the spokesmen toput forward views not merely on his own behalf but also on behalf of theparty of which he was a member.
Shortly before the time arranged for a pre-recording of the broadcast tobe made by Mr Lynch on behalf of the Sinn Fein party the respondent,Patrick Cooney, Minister for Posts and Telegraphs, made an order( Statutory Instrument No. 21 of 1982) whereby, pursuant to the powersconferred on him by section 31, subsection (1), of the BroadcastingAuthority Act 1960, as amended by the Broadcasting Authority Amendment Act 1976, he prohibited RTE from transmitting (a) any broadcast, whetherpurporting to be a political broadcast or not, made by or on behalf ofor advocating, offering advice or support “for the organisationstyling itself Provisional Sinn Fein” and (b) any broadcast by anyperson or persons representing or purporting to represent the saidorganisation. Incidentally, the name of the party is not”Provisional Sinn Fein” but simply “Sinn Fein”.However, that matter is not material to this case.
Section 31 of the Act of 1960, as amended by section 16 of the Act of1976, provides that where the Minister is of the opinion that thebroadcasting of a particular matter or any matter of a particular classwould be likely to promote or incite to crime or would tend to underminethe authority of the State, he may by order direct the Authority torefrain from broadcasting the matter or any matters of the particularclass and the Authority shall comply with the order. It was in pursuanceof that power that the Minister made the order complained of in thiscaseprohibiting the party political broadcast being made on behalf of theSinn Fein party. There was no prohibition against Mr Lynch broadcastingon behalf of his own candidature. However, any broadcast he might makewhich would represent or promote the views or objects of his politicalparty was prohibited.
The first question to consider in this case is whether or not Mr Lynchhad a sufficient or any interest to maintain the present proceedings.The proceedings were brought for an order of certiorari to quash theaforesaid Statutory Instrument. It was claimed that the Order was ultra vires the powers given to the Minister undersection 31 of the Broadcasting Authority Amendment Act 1976.
What has been referred to by Kenny J. as “this great remedy”of certiorari is one of the procedures available to initiate judicialreview of administrative actions, among other things. It has also beenobserved that restrictive rules about standing are in general inimicalto a healthy system of administrative law. The question of the judicialcontrol or review of the administrative acts of public authorities has,not surprisingly, given rise to a considerable amount of judicialopinion upon the question of what sufficient interest is required of theparty bringing the public authority before the Court. Thissubject has also arisen in the international sphere covering proceduresof such courts as the International Court of Justice, the European Courtof Human Rights and the Court of Justice of the European Communities.For example, in the last named Court the private individual plays a verysmall part in the supervision of the legality of Community action,whereas by contrast in proceedings before the European Court of HumanRights he has far greater scope. In national jurisdictions, andparticularly in the Member States of the European Economic Communities,the question has given rise to much case law. In the latter States theldquo; actio popularis” is admissible in itsclassical form only in quite exceptional cases. However, there may becircumstances in particular contexts in which in effect such an actionmay be allowed. In Ireland it is sufficient to be “a personaggrieved” – a term to be generously interpreted – which isgenerally understood to include any person who has reasonable grounds tobring the proceedings. Broadly speaking, the test would be the samewhether one is proceeding for certiorari or for a declaratory action.Each of these is a discretionary remedy but not in the sense that thegrant or refusal may be at the whim of the Court. The discretion of aCourt to refuse either of, these remedies to a person aggrieved is verylimited and normally they wlll issue ex debito justitiae.
The question of whether a person has sufficient interest or not mustdepend upon the circumstances of every particular case. In each suchcase the question of sufficient interest is a mixed question of fact andlaw which must be decided upon legal principles but, it should be added,there is greater importanceis to be attached to the facts because it is only by an examination ofthe facts that the Court can come to a decision as to whether there is asufficient interest in the matter to which the application relates. Inso far as it may be thought that such a matter can be deemed to be aquestion of practice rather than of substantive law it is sufficient topoint out that the Rules of the Superior Courts make no referencewhatever to this subject. However, such rules as do exist, or appear toexist, regarding what is “sufficient interest” for thepurpose of applying for certiorari or a declaratory order are judge-maderules and as such can be changed and altered by judges. More importantlythey must be flexible so as to be individually applicable to theparticular facts of any given case. Such a question cannot be regardedas a preliminary point unless there is an admission of all the factsnecessary to determine the issue. In the absence of any admission in anysuch case where the point is raised it is necessary for the Court toenter into a sufficient examination of the facts and having heard themto decide whether or not a sufficient interest has beenestablished.
In so far as assistance can be got from the decided cases it will beseen that in all of the cases the circumstances of each case decided thequestion. The circumstances disclosed by the various cases demonstratea wide variety of instances in which a sufficient interest has beensuccessfully established. Thus, in the well known case of Regina(Bridgman) v Drury 1894 2 I.R. 489, a ratepayer was a person with asufficient interest to quash an auditor’s allowance of the excellentluncheon partaken by the members of the Dublin Corporation on a visit tothe Vartry Waterworks. (Full details of the fare served at thatsumptuous repast may be found in the judgment of Sir Peter O’Brien,C.J., at p. 496–497.) On the other hand, in a recent case in GreatBritain, the National Federation of Self-Employed and Small Businesses,an organisation of taxpayers and claiming to represent a body oftaxpayers, were found not to have a sufficient interest to challenge aspecial arrangement made by the Revenue Commissioners in England wherebythe Revenue Commissioners would not investigate tax evasions prior to acertain date on ondition that returns were submitted for subsequentdates. The ratio of that decision was that the tax system wasbased on total confidentiality of assessments and negotiations betweenindividuals and the Revenue Commissioners, and that on the evidence theRevenue authorities in making the impugned arrangements were generallyacting in the care and management of taxes under the powers entrusted tothem. Therefore the applicants were held not to have sufficient interestto raise the question nor had they succeeded in showing that the RevenueCommissioners had acted ultra viresin making the arrangements. See The Inland Revenue Commissioners vNational Federation of Self-Employed and Small Businesses Limited1981 2 A.E.R. 93. Another illustration of the fact that a ratepayerseems to be in a better position to show an interest than a taxpayer isto be found in Regina v The Greater London Council, Ex ParteBlackburn 1976 3 A.E.R. where it was held that a ratepayer had asufficient interest to seek to control the Greater London Council in theexercise of its film censorship functions. To quote Lord DenningM.R.:
“Mr Blackburn is a citizen of London. His wife is a ratepayer. Hehas children who may be harmed by the exhibition of pornographic films.If he has no sufficient interest, no other citizen has.”
The many decisions of the Courts of Ireland and of other nationaljurisdictions amply illustrate the truth of the statement that thequestion of what is a sufficient interest is to be determined havingregard to the circumstances of each case.
When one examines the same question in the context of declaratory ordersthe conclusion is the same, namely that the person concerned must beable to show sufficient interest or “a real interest” – see The Transport Salaried Staff’s Association v C.I.E. 1965 I.R.180 – and that again will depend upon the circumstances. In an actionsuch as the present one which ultimately raises a constitutionalquestion, namely the validity of an Act of the Oireachtas having regardto the provisions of the Constitution, which was initiated by way ofcertiorari and is tantamount in its effect, if successful, to adeclaratory order, the question is whether by reason of the fact that itis challenge to the constitutionality the test should be any different.In my view it is not. The question of the sufficiency of interest mustbe examined in the light of the particular circumstances.
As the Chief Justice pointed out in his judgment the test laid down in Cahill v Sutton 1980 I.R. 269 for determining a sufficiency ofinterest is an obligation to show that the “impact of the impugnedlaw on his personal situation discloses an injury or a prejudice whichis either suffered or is in imminent danger of suffering”. ThisCourt in the judgment of the Court in East Donegal Co-operative vThe Attorney General 1970 I.R. 317 at p. 338 expressly rejected thecontention that it was necessary for a plaintiff to show that theprovisions of the legislation impugned applied not only to theactivities in which he was currently engaged but that their applicationhas “affected his activities adversely”. This decides thata person does not have to wait to be injured. Once again, the questionof sufficiency of interest will depend upon the circumstances of thecase and upon what appears to be the extent or nature of the impact ofthe impugned law on the plaintiff’s position. As wasstated in the East Donegal case, at p. 338, “to affordproper protection, the provisions (of the Constitution) must enable theperson invoking them not merely to redress a wrong resulting from aninfringement of the guarantees but also to prevent the threatened orimpending infringement of the guarantees and to put to the test anapprehended infringement of these guarantees.” Thus while it maybe said that in most systems of law, including our own, nowhere is an actio popularis admitted in respect of allegedinvalidities yet there may be circumstances in particular contexts inwhich in effect such an action may be allowed.
While the Minister’s order was not directed to Mr Lynch nor indeed tohis party but was directed to Radio Iarnrod, the effect of itwas felt by Mr Lynch and his party in that it would no longer be lawfulfor Radio Iarnrod to permit him to make the broadcast agreedupon and therefore the Authority indicated they would not allow him todo so in view of the Minister’s order. While one might possibly regardthe granting of permission to Mr Lynch by RTE as more in the nature of aprivilege than a legally enforceable right, the distinction is notreally material for the purposes of this case. The fact is that theprivilege or “right” was never revoked by RTE and if theMinister had revoked his order the broadcast would have gone ahead.Therefore Mr Lynch and his party can be saidto have suffered a loss and to have been affected in a material way. Itis unnecessary to consider whather in the granting of broadcasting timeto various political parties any obligation lay upon Radio TelefisEireann to act judicially in the allocation of time within the ruleslaid down by themselves or to enter upon an examination of the case lawwhich seeks to distinguish between rights and privileges. Access to thepublic via television and radio is indeed something of value in anelection campaign and those who have been afforded this access wouldhave a legal right to restrain any unlawful interference with theexercise of it, For that reason I am of opinion that Mr Lynch has inthis case a sufficient interest to pursue the proceedings.
The next question to consider is whether the Minister acted ultra vires the statute. The first matter therefore iswhether any grounds existed for making such an order. The Minister hasput in evidence a considerable body of material which could fairly leadto the conclusion that one of the aims of the Sinn Fein party is notmerely to weaken the authority of the State but to overthrow it as it atpresent exists. It is not impermissible to attempt to alter thecharacter and nature of the State by means of the democratic electoralprocess but the evidence in the present case provides amplejustification for the formation of an opinion that the attainment of theobjectives of the Sinn Fein party would not be confined to what might betermed constitutional methods. It is not suggested that any of thesematters were to be put forward in the broadcast contemplated by Mr Lynchand his party but nonetheless the broadcasts were to be made on behalfof that party, named as such, and in my view the evidence was sufficientto enable a Minister reasonably to form the opinion that any broadcastmade on behalf of that party, whatever the immediate object of thebroadcast, could itself amount to an advancement of a cause and ofmethods which are inimical to the legitimate authority of theState.
It is true that the Minister did not give advance notice of the makingof his order nor did he invite representations. The time was short anddid not in reality allow for any such procedure. The Minister may wellhave taken a considerable risk in making such an order withoutattempting to hear the other side of the case. However, in the presentcase he had ample factual grounds available and no effort has been madesince he made his order to contravert any of these factual grounds. Ithas been submitted that his order should be quashed simply because hedid not go through the procedure of seeking the views of the partyaffected in advance. In view of the time factor, in my view he wasjustified in acting as a matter of urgency having regard to the cogencyof the evidence already available to him.Nothing has been shown to indicate that his decision would have been orought to have been any different if he had gone through that procedure,even if the time for doing so was available. In my view no groundshave been established upon which the Court should quash the order of theMinister.
It has been suggested in the course of the argument before this Courtthat certiorari is not an appropriate procedure for challenging thevalidity of an Act of the Oireachtas having regard to the provisions ofthe Constitution. It is not possible to lay down any hard or fast rulein this matter. The Court has often indicated that the quicker theprocedure available the better for everyone. This Court has had manyunfortunate examples of matters being held up for very long periodsbecause the parties chose as a matter of tactics to initate plenaryproceedings rather than other speedier procedures to challenge thevalidity of an Act of the Oireachtas. The result has been that on anumber of occasions proceedings in courts all over the country,particularly in the District Court, have been held up not only formonths but for years pending the final resolution of the long drawn outplenary proceedings. In matters which will have a very wide impact ifthe challenge to the validity of an Act should succeed it is desirablethat the proceedings should beinitiated and determined in the quickest possible manner. The flexibleremedy of certiorari may frequently be the best procedure. Anoutstanding example of this is the case of The State (Nicolaou) v AnBord Uchtala 1966 I.R. 567. There the proceedings took the form ofan application for an order of certiorari to quash an order made by theAdoption Board. The case involved a most important point, namely theconstitutional rights, if any, of the father of an illegitimate childand the validity of various provisions of the Adoption Act, 1952, were under attack. Even with that quick form of procedure theproceedings took two years from the granting of the original conditionalorder to the delivery of judgment in the Supreme Court. It would havetaken a lot longer if it had been done by the relatively slow process ofplenary proceedings. The present case reached this Court with verycommendable rapidity and if it had been brought by way of plenaryproceedings it would not be expected to reach the Court for anothercouple of years. There are some cases which of their nature must go byway of plenary proceedings because there may be a good deal of evidenceto be decided but where these considerations do not apply then inmatters affecting the validity of Acts of the Oireachtas whateverprocedure can arrive at the speediest conclusion is the one which is themost desirable. In another case of an urgent character, namely TheState (Burke) v Lennon 1940 I.R. 136,a section of the Offences Against the State Act 1939was held to be invalid having regard to the provisions of theConstitution on a habeas corpus motion. It is to be noted that in thelast paragraph of the judgment of the High Court in that case, which wasthe effective judgment in the case, attention was drawn to the fact thatno application for certiorari was made and the inference is clear thatthe case could just as easily have proceeded upon certiorari but as thathad not been sought the Minister’s warrant in the case was not quashedbut the effect was just as if it had been.
I am of opinion that the order of certiorari in the present case shouldnot be granted and that the cause shown should be allowed.
Judgment of Henchy J.delivered the 28th July 1982
At the most, two questions require to be answered in this appeal. Thefirst is: was it correctly determined in the High Court that certioraridoes not lie to quash the Order made by the Minister for Posts andTelegraphs on the 9 February 1982, under s. 31(1) of the BroadcastingAct, 1960 (as replaced by s. 16 of the Broadcasting Authority(Amendment) Act, 1970), directing Radio Telefis Éireann torefrain from broadcasting any matter which is “(a) a broadcast,whether purporting to be a political party broadcast or not,made by, or on behalf of, or advocating, offering or inviting supportfor, the organisation styling itself Provisional Sinn Féin, (b) abroadcast by any person or persons representing, or purporting torepresent, the said organisation”? It is only if the answer givenin favour of the Minister by the High Court Judge to that question isaffirmed, and an order of certiorari is denied, that the second questionwould arise, for it is a sound and well-established practice that, wherethe relief sought may be granted on a ground which does not involve adecision as to the constitutionality of a statutory provision, the issueof constitutionality should be left undecided. In this case, if theimpugned order were quashed for being ultra vires for any ofthe reasons set out in the second schedule to the conditional order ofcertiorari, a ruling on the plea that s.31(l) (in its present form) isunconstitutional would be plainly unnecessary for the disposition ofthis case.
If, however, certiorari does not lie to quash the impugned Order forbeing ultra vires, the second questionwould arise namely, does it lie with Sean Lynch (“theprosecutor”) to contend successfully that s. 31(1) of the I960 Act(as rewritten by s. 16 of the 1976 Act) is invalid for being repugnantto the Constitution? If such a plea were to prevail, then the impugnedOrder would be quashed at the behest of the Prosecutor, not because theMinister exceeded the law-making power delegated to him, but because thestatutory delegation itself is repugnant to the Constitution.
As to the first question, the High Court Judge held that the impugnedOrder was not open to challenge on the ground of ultra vires.He so held because the Minister is empowered to make such an Order whenhe is “of the opinion that the broadcasting of a particular matteror any matter of a particular class would be likely to promote, orincite to, crime, or would tend to undermine the authority of theState”. The Judge felt compelled by judicial authority to holdthat the purely personal and exclusively subjective element connoted bythe words “of the opinion” meant that, whenthe Minister has formed the type of opinion mentioned in the section andhas then issued (as he did in this case) an Order based on such opinion,the Order could not be invalidated by the courts by reason of any defectin the process by which the Minister reached his opinion. The Judgeseems to have accepted the argument put forward on behalf of theMinister that, no matter how unreasonably or unwarrantedly theMinister’s opinion was formed, it was the Minister’s opinion, and, assuch, by reason of its unqualified subjectivity, was beyond the scrutinyof the courts. However, it is right to point out that the Judge saidthat it is only when “the Minister was bona fide in forming thenecessary opinion” that the Courts are debarred from testing thevalidity of the Order on the ground of reasonableness. Thisqualification would seem to undermine the logic of the approach adoptedby the Judge, for if the good faith of the Minister in making the Orderis open to consideration by the Courts, it would be difficult to justifythe exclusion from judicialscrutiny of all or any of the other matters which could be said to benecessary for the formation by the Minister of a valid opinion of thekind specified in the section. Some of the most erroneous andinsupportable opinions may be arrived at in good faith. For example,they may derive from a genuine misapprehension or misapplication ofnecessary legal or factual considerations, and thereby be outside theimplied range of the statutory delegation to the Minister of thespecified law-making power. In such a case, where the impugned opinionis not simply one that the court disagrees with, or thinks it impoliticor unwise to have formed, but is shown to be vitiated by an improperexercise of the law-making process necessarily implied in thedelegation, it would seem to be an abrogation by the Court of itsconstitutional function if it deemed itself powerless to intervenemerely because the opinion was arrived at in good faith. If the opinionrelied on in a particular case is shown by a duly qualified litigant tobe outside the scope of thedelegation, it would be strange if a Court empowered to pronounce on thevalidity of subordinate legislation on the ground of ultravires were to be bound to withhold a finding of invalidationnotwithstanding that the root of the invalidity was an ultravires opinion.
It appears from the judgment under appeal that the reason why the Judgeheld the Minister’s opinion to be excluded from judicial review wasbecause he felt bound to follow a statement to that effect in thejudgment of the then Supreme Court in In re Art. 26 of theConstitution and the Offences Against the State (Amendment) Bill,1940 I.R. 470. If that statement could be said to be part of the ratio decidendi of that judgment, I would agree that thedoctrine of stare decisis would have obliged the Judge tofollow it, even though the Supreme Court which gave that judgment wasthe Supreme Court which was empowered to function as such under thetransitory provisions of the Constitution and was not the Supreme Courtwhich was required by Art. 34, s. 1, to be established by law,and which was eventually established by the Courts (Establishment andConstitution) Act, 1961. The maintenance of judicial order andcontinuity would support such a conclusion.
However, I do not consider that the statement relied on could be said tobe part of the ratio decidendi of the In re Art. 26decision. The reference by the President to the Supreme Court of theBill in question was deemed necessary because of the decision of GavanDuffy J. in 1939 in The State (Burke) v. Lennon and the AttorneyGeneral 1940 I.R. 136. In that case Gavan Duffy J. ordered therelease by habeas corpus of an internee detained under Part VI of theOffences Against the State Act, 1939, primarily because in the opinionof Gavan Duffy J., Part VI of the Act was repugnant to the Constitution.Part VI had contained a provision (in s. 54) whereby the Government wasempowered in certain emergency circumstances to bring that Part of theAct into operation by making and publishing a proclamation to thateffect. TheGovernment had made and published such a proclamation. Part VI had alsoprovided as follows (in s. 55(1)):
“Whenever a Minister of State is satisfied that any particularperson is engaged in activities calculated to prejudice the preservationof the peace, order, or security of the State, such Minister may bewarrant under his hand order the arrest and detention of suchperson…
It was further provided (in s.55(3)) that
“Every person arrested under … this section shall bedetained in a prison or other place prescribed in that behalf byregulations … until this part of this Act ceases to be in forceor until the subsequent provisions of this Act, whichever firsthappens”.
In The State (Burke) v. Lennon the person on whose behalf anapplication was made for an order of habeas corpus was in internmentunder a warrant made by a Minister under s. 55(1). In the course of hisjudgment, in which he held Part VI of the Act to beunconstitutional, Gavan Duffy J. said ( 1940 I.R. at pp. 151-2):
“… I am of opinion that indefinite internment under Part VIof the Act is indistinguishable from punishment for engaging in theactivities in question, and I consider that the decision of a Ministerof State to order the arrest and internment of a man under s. 55 isequivalent to a judgment pronounced against the internee for hisdangerous activities.
“… the authority conferred on a Minister by s. 55 is anauthority, not merely to act judicially, but to administer justice andan authority to administer criminal justice [in breach of Art. 37] andcondemn an alleged offender without charge or hearing and without theaid of a jury… consequently a law endowing a Minister of State,any Minister, with these powers is an invasion of the judicial domainand as such is repugnant to the Constitution…. If my analysis ofthe Minister’s statutory duty is accurate, the document which the Actcalls a warrant is really a combination of a conviction, an order toarrest and awarrant of committal”.
As the report shows, when the respondents brought an appeal to theSupreme Court from that decision, the Supreme Court held that an appealdid not lie. In what was apparently an effort to circumvent thisimpasse, the Government introduced the Offences Against the State(Amendment) Bill, 194O and it was passed by both Houses of theOireachtas. When the Bill was presented to the President for signature,in exercise of the power vested in him by Art. 26 he referred it to theSupreme Court for a ruling as to its constitutionality. Since the Billamounted essentially to a repeal and re-enactment of the condemned PartVI of the 1939 Act, the reference under Art. 26 was a method whereby, insubstitution for the appeal which had been held not to lie against thedecision of Gavan Duffy J. in The State (Burke) v, Lennon, theopinion of the Supreme Court could be got as to whether Gavan Duffy J.was correct in ruling Part VI of the 1939 Act to be unconstitutional.Possibly to justify the enactmentof the Bill as an amendment, the text of the Bill differed in a fewminor respects from that of Part VI of the 1939 Act. The main differencewas that under the Bill a warrant of internment could issue”whenever a Minister of State is of opinion” that theproposed internee is engaged in the prescribed activities, whereas underthe condemned Part VI the warrant could issue whenever the Minister”is satisfied” that the proposed internee is engaged inthose activities.
A study of the judgment of Gavan Duffy J. shows that, even if s. 55(1)of the 1939 Act had used the words “is of opinion”, insteadof “is satisfied”, he would still have found Part VI to beunconstitutional. I say that because it is clear from the judgment thatit was the effect of the ministerial warrant (which was held to be”an authority, not merely to act judicially, but to administerjustice and an authority to administer criminal justice”), and notthe mental element leading to the making of the warrant, that was thefoundation for the opinion of Gavan Duffy J. thatPart VI was unconstitutional. Indeed, it might well be contended that ifs. 55(1) had used the words “is of opinion”, thus connotinga laxer and more arbitrary level of Ministerial assessment, Gavan DuffyJ. might very well have found those words to be an a fortiorireason for his finding of unconstitutionality.
Upon the hearing of the reference by the President, the Supreme Courtrejected the argument that the Bill was unconstitutional. In doing so,the Court set aside the conclusion of Gavan Duffy J. that in making andissuing a warrant for detention the Minister concerned was administeringjustice within the meaning of Art. 34; it rejected the argument that theimpugned provisions created a criminal offence; and it dismissed thecontention that those provisions fell short of the guarantees as topersonal rights contained in Art. 40. In short, the Supreme Courtoverthrew the conclusion of Gavan Duffy J., as well as the rationale forthat conclusion, as to the effect, in the constitutionalperspective, of the making and issuing of a warrant ofdetention. In neither decision was the adjudicative process, whereby theMinister decided to make and issue a warrant, a crucial element. Eachdecision would have reached the conclusion actually reached, whether theimpugned provisions used the expression “is of opinion” orthe expression “is satisfied”.
It is true, however, that the Supreme Court expressed itself as followsin the course of its decision ( 1940 I.R. 470, 479):
“The only essential preliminary to the exercise by a Minister ofthe powers contained in s. 4 [i.e. as to the making and issue of awarrant of detentioin] is that he should have formed opinions on thematters specifically mentioned in the section. The validity of suchopinions is not a matter that could be questioned in anyCourt”.
On a perusal of the judgment as a whole, I am satisfied that the opinionexpressed in the latter sentence was purely obiter. It is aparenthesis which has no necessary connection with either theconclusions or the reasoning of the judgment. It is no more than apassing remark, superfluous to the disposition of any of the reportedsubmissions of counsel in the case. On the application of any of thetests for distinguishing what is obiter from what is part ofthe ratio decidendi of a case, I would deem that by-the-wayobservation to be obiter. It therefore has not the authority ofa binding precedent.
I regret, therefore, that I cannot agree with the conclusion reached inthe judgment under appeal in this case that the judgment given by thethen Supreme Court is a conclusive authority for the proposition thatthe expression “is of opinion” does not permit of a judicialreview of the opinion actually formed, so as to determine whether it waslegally valid or not.
Considering the commendable speed with which this case was dealt with inthe High Court, one might excuse counsel for not having directed theJudge’s attention to what was a binding decision on the point,namely, the decision of the then Supreme Court in In re Ó Laighléis 1957 I.R. 93. It is lessunderstandable why, despite the fact that counsel on each side had anopportunity to file written submissions for the purpose of the appeal,this Court’s attention has not been directed by counsel to that case,either in the written submissions or in the course of the argument.Notwithstanding that lapse, however, once the case has come to ournotice it has to be faced up to, for the purpose of overruling orapproving its decision on this point.
The Ó Laighléis case came before the Supreme Court onappeal from a decision of the High Court to the effect that ÓLaighléis, who was being held in internment pursuant to a warrantmade by the Minister for Justice under s. 4 of the Offences Against theState (Amendment) Act, 1940, was not entitled to be released by habeascorpus. The appeal by the internee was dismissed. While not questioningthe Minister’s bona fides in making and issuing the warrant, his counselsubmitted that, as the internee had averredin his affidavit that he was not engaged in illegal activities at thetime of his arrest, he was entitled to question the validity of theMinister’s opinion. The Court ruled otherwise. In doing so it quoted andapplied the dictum in the judgment of the Court in the In re Art.26 case of 1940 which said that the validity of such opinionscannot be questioned in any Court. What was merely obiter inthe 1940 case thus bacame part of the ratio decidendi in the Ó Laighléis case.
The question, then, is whether that ruling should be still adhered to.In my opinion, it should not. It should be overruled, in exercise of thepower of this Court to do so as stated in Attorney General v. Ryan’sCar Hire Ltd. 1965 I.R. 642 and in Mogul of Ireland v.Tipperary (N.R.) C.C. 1976 I.R. 260.
While it might be argued that the opinion of the then Supreme Courtexpressed in the 1940 and 1957 decisions was part of what was thencurrent judicial thinking, that could not be said if the same opinionwere expressed today. Decisions given in recent years in this and otherjurisdictions show that the power of the courts to subject the exerciseof administrative powers to judicial review is nowadays seen as having awider reach than that delimited by those decisions of 1940 and 1957.The more recent decisions in this and other jurisdictions – I do notcite them, because counsel have not referred to them – show that thereis good foundation for the conclusion stated in de Smith, JudicialReview of Administrative Action (1980), 4th edn., p. 326, that”nowadays the courts will not readily be deterred by subjectivelyworded statutory formulae from determining whether acts done avowedly inpursuance of statutory powers bore an adequate relationship to thepurposes prescribed by statute”.
I conceive the present state of evolution of administrative law in thecourts on this topic to be that, when a statute confers adecision-making power affecting personal rights on a non-judicial personor body, conditional on that person or body reaching aprescribed opinion or conclusion based on a subjective assessment, aperson who shows that a personal right of his has been breached or isliable to be breached by a decision purporting to be made in exercise ofthat power has standing to seek, and the High Court jurisdiction togive, a ruling as to whether the precondition for the valid exercise ofthe power has been complied with in a way that brings the decisionwithin the express or necessarily implied range of the power conferredby the statute. It is to be presumed that when Parliament conferred thepower it intended it to be exercised only in a manner that would be inconformity with the Constitution and within the limitations of the poweras it is to be gathered from the statutory scheme or design. This means,amongst other things, not only that the power must be exercised in goodfaith, but that the opinion or other subjective conclusion set as aprecondition for the valid exercise of the power must be reached by aroute that does not make the exercise unlawful-such as by misinterpreting the law, or by misapplying it through takinginto consideration irrelevant matters of fact, or through ignoringrelevant matters. Otherwise, the exercise of the power will be held tobe invalid for being ultra vires.
Because the prescribed opinion or other conclusion is necessarilysubjective, there may be cases where it would be difficult, if notimpossible, to subject to scrutiny the reasoning or the thoughtprocesses of the person or body exercising the power. That, however, isnot the position in this case. The Minister has unveiled in hisaffidavits all the factual material on which he brought his mind tobear, together with the reasoning by which he formed his opinion. Havingconsidered all those matters, I am satisfied that not only was thatopinion formed in good faith and justified by the facts but that anopinion to the contrary would have been perverse. For the uncontrovertedevidence showed that Sinn Féin, the party on whose behalf theprosecutor was puttinghimself forward as a candidate at the general election, is an integraland dependant part of the apparatus of the Provisional I.R.A., anillegal terrorist organisation which, by both its avowed aims and itsrecord of criminal violence, is shown to be committed to, amongst otherthings, the dismantling by violent and unlawful means of the organs ofState established by the Constitution. The Minister, therefore, wasfully justified in his opinion that a broadcast by, or on behalf of, orin support of, Sinn Fein (commonly, if inaccurately, referred to asProvisional Sinn Féin, because of its closeness to theProvisional I.R.A.) would, in the words of the section, “be likelyto promote, or incite to, crime or would tend to undermine the authorityof the State”.
There arises, then, the second question which, for the purposes of thisindividual judgment, must be stated narrowly as follows: has theprosecutor the standing necessary for impugning the constitutionality ofthe section under which the Minister’s Order was made?
It was urged on behalf of the Minister that the prosecutor had no right,at common law, by statute, or under the Constitution, to make apolitical party broadcast or any other kind of broadcast, on radio ortelevision; that the general rule stated in Cahill v. Sutton 1980 I.R. 269, 284, requires a litigant in his position “to showthat the impact of the impugned law on his personal situation disclosesan injury or prejudice which he has either suffered or is in imminentdanger of suffering”; and that no reason has emerged from thecircumstances of this case to justify a departure from that generalrule.
It is correct as a general statement to say that a citizen as such hasno particular legal right to make a broadcast. Such a right willnormally arise only when an agreement to broadcast is entered into.However, this does not mean that the Broadcasting Authority has carte blanche as to what kinds of broadcasts it will transmitor as to whom it will allow to broadcast. Its discretion in respect ofthose matters is limited by the requirements of theBroadcasting Authority Acts, I960 to 1976.
S. 18(1) of the I960 Act (as thus rewritten by s. 3(1) of the 1976 Act)provides, inter alia, that:
“the broadcast treatment of current affairs, including matterswhich are either of public controversy or the subject of current publicdebate, is fair to all interests concerned and that the broadcast matteris presented in an objective and impartial manner and without anyexpression of the Authority’s own views”.
Since a political party broadcast can rarely be said to be impartial orobjective in its content or presentation, it might be said that such abroadcast is forbidden by that statutory directive. However, s. 18(2)subjects s. 18(1) to the following modification or qualification:
“Nothing in this section shall prevent the Authority fromtransmitting political party broadcasts”.
It is to be noted that what is permitted by s. 18(2), despite therequirement in s. 18(1) (asrewritten) of fairness objectivity and impartiality is “partypolitical broadcasts”. It is a necessary implication of the powerthus conferred that it will be exercised in a constitutional manner. Forexample, if the Authority were to allow one political party to make apolitical party broadcast, while denying that opportunity to any of theother political parties contesting the election, any one of thoseexcluded political parties could complain of unfair discriminationcontrary to Art. 40, s. 1 of the Constitution, unless the exclusioncould be justified under that constitutional provision. One of thegrounds of justification would be that the Minister had made an Orderunder s. 31(1) in respect of the excluded political party.
I am prepared to accept that the prosecutor in this case, either as acandidate or as a spokesman for Sinn Féin, did not begin byhaving a right to make a political party broadcast. But once theBroadcasting Authority decided, and promulgatedtheir decision to Sinn Féin and to the public, that as part oftheir scheme of allocation of political party broadcasts they wouldallow Sinn Féin to make one two-minute broadcast on each of theAuthority’s five broadcasting outlets, the prosecutor, as the nominatedbroadcaster for Sinn Féin, had, as between himself and theAuthority, a vested defeasible right to make that broadcast subject onlyto approval of its content by the Authority. However, before a text ofthe proposed broadcast could be submitted for approval, the Ministerintervened by making the impugned s. 31(1) Order, thus nullifying theright of the prosecutor to make the broadcast.
The documents before us would not suggest that the text of the proposedbroadcast would be unacceptable to the Broadcasting Authority.Consequently it must be held that it was the Minister’s interventionunder s. 31(1) that divested the prosecutor of the right to broadcastwhich had been given by the Authority and accepted by him and hisparty.
Because of the nature of the power vested in the Minister by s. 31(1),and because the circumstances of the case dictated that, in theparamount interest of public security, that power be exercised promptlyand without any form of hearing, it is not open to the prosecutor toinvoke the rule of audi alteram partem as a ground forinvalidating the Minister’s Order.
For the reasons I have given, I consider that the prosecutor had a locus standi to question the constitutionality of s.31(1).
The answer to that constitutional question is to be found (as isrequired by the Constitution) in the judgment of the Court.
Attorney General & Min. P & T v Paperlink Ltd
[1983] IEHC 1
Mr. Justice CostelloThe constitutional attack on the 1908 Act is based on two distinct sets of rights which it is claimed the second, third and fourth named defendants enjoy by virtue of the Constitution. The claim, it is to be noted, is maintained by these defendants and not by Paperlink, it being accepted that the company has no constitutionally guaranteed personal rights on which to found a cause of action. The individual defendants, however, claim that they enjoy (a) rights to communicate and (b) to carry on a business which the 1908 Act infringes. I will deal with the claim to the (a) rights first.
It is pleaded in paragraph 2 of the counterclaim that the rights of citizens guaranteed by the Constitution include
(a) the right of citizens to communicate freely with one another, and
(b) the right of citizens to communicate freely with one another, without being obliged to have recourse to the State as the vehicle of such communication.
These rights, it is said, are derived from Article 40.3.1 which provides that:-
“the State guarantees in its laws to respect, and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen.”
and it is claimed that these two rights, though unspecified in this Article, are personal rights of the citizen guaranteed by its provisions.
As to the assertion that there exists in the Constitution a “right to communicatefreely” it seems to me that this submission fails to take into account the distinction between a personal right guaranteed by the Constitution and the freedom to exercise a constitutionally guaranteed personal right, a distinction which is to be found throughout the entire Constitution and which is made explicit for example, in Article 40.6.1. I will, therefore, consider whether “a right to communicate” without the qualifying adverb “freely” is embraced by Article 40.3.1. It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1 (1). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1.
But the right to communicate is obviously not an absolute one. Laws may restrict the nature of the matter communicated (for example, by prohibiting the communication of confidential information or treasonable, blasphemous, obscene or defamatory matter) and laws may also restrict the mode of communication (for example by prohibiting communication by advertisement contrary to the planning code or by radio contrary to wireless telegraphy regulations). It follows, therefore, that it is not correct, and indeed, can be seriously misleading, to suggest that the defendants enjoy a right to communicate “freely”. Along with other citizens they enjoy a right to communicate.
A constitution which guarantees personal rights imposes co-relative constitutional duties on the State. In the case of those protected by Article 40.3.1 the duty imposed on the State is to guarantee in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the right to communicate. Considering the 1908 Act from the point of view of the defendants as citizens wishing to communicate by letter I fail to see how the Act infringes their constitutional rights. The 1908 Act does not prohibit them from delivering a letter themselves nor from employing someone else to deliver it for them and in fact by making provision for a nation-wide service for the delivery of letters facilitates the exercise of their rights. The Act, as has been pointed out, prohibits the activity of making a collection of letters for delivery to others but that prohibition does not in itself involve an interference with the citizen’s right to communicate (whether it interferes with a right to do business is a question for separate consideration). Neither the enactment itself nor its mode of operation infringes in any way the basic right to communicate which the defendants enjoy.
But the defendants plead that along with other citizens they have another right, viz., a right “to communicate freely with one another without being obliged to have recourse to the State as the vehicle of such communication.” This right, it is said, is one of the unspecified rights accorded to them by Article 40.3.1. I am unable to agree. I cannot see that such a right inheres in the human personality. Nor is it a right which can be derived from any of the other provisions of the Constitution. It was argued that citizens may want to communicate by letter to other citizens on political matters and that they should not be beholden to the State for the provision of a postal service but I fail to see how the political rights which citizens enjoy under the Constitution require to be protected by the right now being asserted. It was also argued that constitutionally guaranteed family rights could be interfered with unless the right now being considered existed. But here again I can find nothing in the constitutional provisions to which I was referred which would justify me in holding that there existed in Article 40.3.1 the personal right now being considered. It does not, in my opinion, exist and so no question of its infringement by the 1908 Act can arise. So this part of the attack on the Act fails.
I now must consider the defendants as citizens wishing to carry on business as couriers and unable to do so because of the 1908 Act.
The plaintiffs have raised a preliminary objection to this part of the defendants” counterclaim. They point to the elementary principle of company law that a company is a legal entity distinct from its shareholders and that the relationship of principal and agent does not exist between the company and its shareholders so that it cannot be said that a company is carrying on business on behalf of its shareholders (seeSalomon -v- Salomon & Co. 1897 A.C. p. 20). They argue that the defendants” case is based on the alleged interference in the business of Paperlink affected by the 1908 Act and submit that as Paperlink is a distinct legal entity and as the defendants as shareholders are not themselves carrying on any business so no interference with constitutional rights resulting from the 1908 Act is established.
Counsel for the plaintiffs drew my attention to (and then sought to distinguish) a recent decision of the Supreme Court (The Private Motorist Provident Society & Moore -v- Attorney General)(Unreported) 6th May 1983. The first-named plaintiff in that case was a society registered under the Industrial and Provident Societies Acts and the second-named plaintiff was a shareholder in and a member of the society. The proceedings concerned the constitutional validity of the Industrial and Provident Societies (Amendment) Act,1978which prohibited societies like the plaintiffs from accepting or holding deposits after the expiration of five years from a specified date. It was alleged that the Act constituted
(a) an unjust attack on the second-named plaintiff’s constitutionally guaranteed property rights and
(b) his constitutionally guaranteed freedom of association.
The Supreme Court held that as a shareholder the second named plaintiff to the extent of his investment in the society and contractual rights therefrom had property rights which were capable of being harmed by injury to the society and it rejected a preliminary submission that the second-named plaintiff had no property rights capable of being envoked for the purposes of Article 40.3 of the Constitution.
But the point in issue in theP.M.P.A. case is not the same as that in the instant case. In the P.M.P.A. case the plaintiff asserted that his constitutionally guaranteed property rights were being infringed – here the infringement alleged is that of a constitutionally guaranteed right to earn a livelihood. It would, no doubt, have been open to the defendants to have pleaded, as did the second named plaintiff in the P.M.P.A. case, that their property rights as shareholders in Paperlink have been invalidly infringed by the unconstitutional interference with the business of Paperlink. But I do not think that their failure to rely on this argument means that their claim must fail. If the defendants have a constitutional right to earn a livelihood (as I believe they have) they can properly claim that they are exercising this right by becoming shareholders and directors in a private company. If the defendants bought shares in Messrs. Guinness A. Son & Co. Ltd. it could not be said that they were carrying on business as brewers. But if they are actively engaged in a business carried on by a private company of which they are shareholders and directors then they are not merely investors in a company but are exercising a constitutional right to earn a livelihood by means of the company.
The defendants have maintained that they have a constitutionally guaranteed right to carry on a business derived from the private property provisions of the Constitution and Article 40.3.1. There is no doubt that the defendants have a constitutional right to earn a livelihood It was at one time considered that the right to work could be regarded as a property right (Brendan Dunne Limited -v- Fitzpatrick 1958 I.R. 29) but in the light of more recent constitutional development it seems to me to be more proper to regard the right to earn a livelihood (which can be regarded as synonymous with the right to work) as one derived from Article 40.3.1, rather than from the property rights guaranteed in the Constitution (see Murphy -v- Stewart 1973 I.R. 92). As the Supreme Court has shown, the exercise by the citizen of his right to private property is regulated by Article 40.3.2 and not by Article 43 (see Blake & Ors. -v- A.G.I.L.R.M. (1981) p. 34.) And so if the right to earn a livelihood is derived from property rights it would have been to this Article that attention should be drawn. But, for reasons I will give in a moment there is, it seems to me, no difference in the protection afforded to the unspecified rights referred to in Article 40.3.1 to the protection granted to the specified personal rights referred to in Article 40.3.2.
The right to earn a livelihood which all citizens enjoy by virtue of the Constitution is a right which in practice in modern industrial societies can be exercised in one of a myriad of different ways. It seems to me to be inaccurate and potentially confusing to state without qualification that each citizen has the constitutional right to carry on the occupation in which he is actually earning his living. The defendants like all citizens have a constitutional right to earn a living; they may choose to exercise that right by doing manual work or non-manual work, by entering a profession or by entering employment, by engaging in commerce (either alone or with others), by manufacturing goods, providing a service, or engaging in agriculture. Their freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal restrains. The nub of the issue, therefore, is whether the 1908 Act invalidly restricts the defendants freedom to exercise their constitutional right to earn a livelihood.
The defendants” challenge to the Act depended partly on a construction of the Constitution and partly on certain facts which they sought to establish by means of expert evidence. Before examining their submissions in detail I should briefly refer to the course of events at the trial. I ruled at the outset of this case that the plaintiffs should present such evidence as they thought fit in support of the relief claimed in their Statement of Claim but that it was not necessary for them to call evidence at that stage in rebuttal of the defendants counterclaim; that at the conclusion of the plaintiffs” case the defendants would be at liberty to adduce evidence both in answer to the plaintiffs” claim and in support of their counterclaim; and that the plaintiffs, if they so wished, could then call evidence in rebuttal of the counterclaim. In the course of the cross-examination of the plaintiffs” principal witness, Mr. Warren, questions were put to him designed to establish that the postal service operated by the department was inefficient and that its administration was defective. I decided to allow these questions on a de bene esse basis as I did not then know the basis on which it was claimed such questions were relevant and I did not wish to interrupt the cross-examination to hear what obviously would be lengthy legal argument. It was made clear, however, at the close of the plaintiffs” case that the efficiency of the departments postal service was not an issue in defence of the plaintiffs” claim but was, it was said, a matter relevant to the defendants” counterclaim. Having made submissions at some length in support of the defendants” counterclaim Counsel then called Mr. O’Connor one of the founders and current directors of Paperlink to whose evidence I have already referred. At the conclusion of his evidence I was then informed that the defendants wished to call as witnesses two economists and two accountants. I was told the nature of the evidence it was proposed they would give. I ruled that their evidence was inadmissible. When expressing my conclusions on the legal arguments to which I will now refer I will explain the basis for this ruling.
As I have said, the defendants suggested that the right to carry on a business was derived partly from the property rights referred to in Article 40.3.2 and partly from the personal rights referred to in Article 40.3.1. I have already pointed out that in my view the correct approach is to start from the proposition that the defendants have a right to earn a livelihood derived from Article 40.3.1. Referring to the particular phraseology of Article 40.3.2 it was urged on the defendants” behalf that the State is required by its laws to protect as best it may from “unjust attack” the property rights of any citizen and that for the purpose of considering whether or not there has been an “unjust” attack the notion of justice in the Article should be informed and guided by the provisions of Article 45 which sets out the directive principles of social policy.
I should explain at once that I do not think these submissions necessarily fail because the defendants” rights to earn a livelihood are derived from Article 40.3.1 rather than Article 40.3.2.
The Constitution is a political instrument as well as a legal document and in its interpretation the Courts should not place the same significance on differences of language used in two succeeding sub-paragraphs as would, for example be placed on differently drafted sub-sections of a Finance Act. A purposive, rather than a strictly literal, approach to the interpretation of the sub-paragraphs is appropriate. I do not, therefore, think that any significance should be attached to the fact that the State’s duty towards the citizens” unspecified personal rights in Article 40.3.1 is phrased in somewhat different language to its duty towards the citizens” specific personal rights set out in Article 40.3.2. Accordingly, I am prepared to hold that the State has a duty by its laws to protect as best it may from unjust attack the personal right of each of the defendants to earn a livelihood.
What then falls for consideration is whether the State monopoly established by the 1908 Act is (a) an “attack” on the defendants” right to earn a livelihood and (b) whether it is an “unjust” attack on that right. As the defendants” submissions are largely based on conclusions which they say can be drawn from Article 45 the first matter which I must consider is whether I am permitted to have regard to this Article for the purposes of this case. Article 45 has an introductory paragraph which states that the principles of social policy set forth in it are intended for the general guidance of the Oireachtas and that the application of those principles in the making of laws shall be the care of the Oireachtas exclusively “and shall not be cognisable by any Court under any of the provisions of this Constitution”. Notwithstanding the apparently all-embracing exclusion of Article 45 from the purview of the courts Mr. Justice Kenny considered that he could have regard to it for the purpose of ascertaining what unspecified personal rights were included in the guarantees contained in Article 40.3.1 (see Murtagh Properties -v- A.G.. 1972 I.R. 335) and Mr. Justice Finlay held that he could look at Article 45.4.2 for the purpose of “reaching a general conclusion as to what may fairly be embraced by the expression “the exigencies of the common good” – a phrase used in Article 43 in connection with the State’s power to delimit the exercise of private property rights (see Landers -v- A.G.. 109 I.L.T.R.16). I respectfully agree. I consider therefore, that I am not precluded by the introductory words of the Article from considering the principles of social policy set out in it for a limited purpose, namely, for assisting the Court in ascertaining what personal rights are included in the guarantees contained in Article 40.3.1 and what legitimate limitations in the interests of the common good the State may impose on such rights.
The defendants” arguments are based on Article 45.3.1 which provides that:-
“The State shall favour and, where necessary, supplement private initiative in industry and commerce.”
It is urged that this principle of social policy means that the Constitution contains an ideological preference in favour of private enterprise and private initiative in commerce. The first conclusion they say to be drawn from this interpretation is that the onus is on the State to justify any interference with private initiative in matters of commerce. Having made this submission in opening the defendants” case the defendants” Counsel at the close of the case submitted that as the plaintiffs had failed to discharge the onus on them of justifying the State monopoly contained in the 1908 Act the Court should declare the Act inconsistent with the Constitution.
There are, it seems to me, two main objections to this first submission. Firstly the defendants are, in my view, reading a great deal more into the Article than its provisions justify Article 45 contains provisions to guide the legislature in its law-making activity and by Article 45.3.1 the Oireachtas is told that the State is required to favour and where necessary supplement private initiative in industry and commerce. This guideline is couched in most general language. Undoubtedly it demonstrates a view, found in other Articles of the Constitution, that the social order should not be based on a system in which all the means of production are owned by the State and a preference for one in which, in the main, industry and commerce are carried on by private citizens rather than by State agencies. But it does not follow from this very general guideline that the Oireachtas could not pass laws establishing State trading corporations or public utilities and I do not consider that it is proper to infer from its provision that the State is called upon in legal proceedings to justify the existence of a State monopoly either in the form of a public utility or a trading corporation.
Secondly, the submission that the onus of proof rests on the plaintiffs ignores the views of the Supreme Court as explained by the Chief Justice inNorris -v- A.G. (unreported) 22nd of April 1983. In that case the Court was considering a pre-1937 statute of the United Kingdom parliament. In his judgment the Chief Justice, having quoted Article 50 of the Constitution, pointed out that the purpose of the Article was to continue in force the laws which had previously operated in Saorstat Eireann with as few exceptions as possible and he pointed out:-
“According to the actual words used in the Article, the law or laws in question operate unless inconsistency is established andthe onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution.” (See pages 9–10)
Inconsistency with the constitution of a pre-1937 statute can be shown to arise from either
(a) the provisions of the impugned statute or
(b) its mode of application.
The onus is on a counterclaiming defendant to establish either (a) or (b) and there is no onus placed on the Attorney General to adduce evidence to show that the impugned statute is being administered in a constitutional way.
I come then to the substantive part of the defendants” argument. The defendants it is said wish to exercise their rights to earn a livelihood by carrying on a courier service. They cannot do so because of the State’s monopoly. This monopoly restricts their constitutional rights and it must be shown that this restriction exists for some constitutionally justifiable purpose. The monopoly cannot be justified for reasons of State security. That leaves the economic arguments for its justification. The defendants, it was said, would show by expert evidence how in practice the monopoly was being operated and how a postal service could be operated differently. It was firstly said that the evidence would establish that it was being administered in an inefficient manner and secondly that the advantages which were claimed for the present monopoly could be achieved by a different method of organising the postal service and one which would be “less offensive” to the defendants” rights, in effect, one which would allow a courier service to be conducted by them. Because the monopoly was administered inefficiently and because it was possible to organise one less restrictive of the defendants rights the “attack” on these rights was “unjust”. To establish this case it was proposed to call two economists and two accountants to show
(a) that the level of wages paid by the department to its employees had increased at a rate higher than the rate of the cost of living,
(b) that “overnight” money had not properly been invested so as to establish a maximum return,
(c) that the accounting system was a bad one,
(d) that no accounts had been published since the year 1979,
(e) that no provision was made in the accounts for the department’s 2,000 vehicles,
(f) that the Auditor and Comptroller General had criticised the department’s accounts for several years past,
(g) that the receipts from the postal services of other countries (paid to the department for handling mail from foreign countries) were less than the sums the department paid to foreign postal services, an imbalance not justified by the inward and outward movement of mail and
(h) that to achieve a national post system and a proper service in rural areas, a state monopoly in the terms of the 1908 Act was unnecessary.
I ruled that the evidence which the defendants proposed to adduce was inadmissible for the following reasons. As to the evidence relating to the alleged inefficiency in the administration of the postal service, it seemed to me that the legal submissions based on the proposed evidence were unsound. Obviously, it is not in the public interest that a service supplied by a department of State is administered inefficiently. But this does not mean that the Act under which it is supplied is unconstitutional. The inefficiency of a public service may be an argument for amending or repealing the Act under which it is provided, but it cannot mean that the provisions of a statute are thereby rendered unconstitutional. If a defendant wishes to establish constitutional invalidity from the manner in which a statute is operated, then it must be shown that in some way it conflicts with the Constitution, for example by an invalid interference with guaranteed personal rights. But even if it was shown that the post office was not being administered in an efficient manner it would not follow from this that any of the defendants” rights were being infringed. The proposed evidence, therefore, was irrelevant to any issue which I had to determine.
As to the submission that there were ways by which a national postal service could be organised which could achieve the objects of the present service without interfering with the defendants” courier service in Dublin and that I should hear evidence by expert economists on this point it seemed to me that it would be wholly improper for me to do so as it would involve the Court in an unconstitutional departure from its role as laid down in the Constitution. This Court is required to administer justice. In doing so it may, of course, hear evidence which would tend to establish that the operation of a statute unconstitutionally infringed a citizen’s right to earn a livelihood. But that is not what the defendants are asking the court to do. They seek to adduce expert evidence for the purpose of establishing (presumably contrary to the views of any expert evidence which the plaintiffs might call in rebuttal) that the national postal service could be so organised as to provide the benefits of the present national system whilst at the same time permitting the defendants to operate in Dublin their courier service. They then submit that in the light of that evidence I should hold that the 1908 Act is unconstitutional because by changing the law or amending the statute in the way suggested the restriction on the defendants” right to earn a livelihood could be raised. But this Court is not the forum in which to decide whether a postal service organised on lines advocated by the defendants” experts is one which meets the requirements of the common good. These are matters for the Oireachtas to determine. I must, of course, defend the citizens rights against any unjust attack, and hold, if necessary, that an existing law has placed an excessive limit on the citizens right to earn a livelihood. But to carry out the inquiry which the defendants ask me to perform and, thereafter, make a determination on an alternative to the existing postal service, would amount to an unwarranted and unconstitutional interference with the powers of government exclusively conferred on the executive and the Oireachtas, a point strikingly illustrated by the fact that as this case was at hearing the Dail was itself considering a Bill to establish a different method of organising the postal system to that contained in the 1908 Act. Just as the courts must not permit the legislature to interfere with the judicial function, so too they must be astute to see that they do not themselves depart from their constitutionally defined role.
So, I disallowed the evidence. And as the defendants have been unable to establish that the 1908 Act is inconsistent with the Constitution I must dismiss their counterclaim.
I come now, in conclusion, to explain why the Attorney General is entitled to the relief he claims.
It was made clear when Counsel opened the plaintiffs” case that this was not a relator action in which the Attorney General was suing on the relation of the Minister as the person entitled to the exclusive privilege conferred by the 1908 Act. This, it was said, is an action which the Attorney General has brought ex officio as guardian of public rights. I heard arguments on the defendants” behalf at the close of the plaintiffs” case to the effect that these proceedings were misconceived. Having considered them I indicated that I could not accede to them and I will give my reasons for this conclusion now. Before doing so, however, I should record that at the end of the case during Counsel’s closing submissions it was submitted on the plaintiffs” behalf that apart from an independent right of the Attorney General to maintain these proceedings in the public interest the facts had established that a civil wrong had been committed and that the Minister in his own right had a right to protect the exclusive privilege given to him by the Act. I made no ruling on this point, save to indicate that I did not consider that the plaintiffs were estopped from making it. I should make clear, however, that the issue which I had been asked to determine (and did so in the plaintiffs” favour) was the Attorney General’s right to the relief claimed and that had I decided this point against the plaintiffs I would have dismissed the case as the alternative argument had not then been advanced.
In opening the plaintiffs” case Counsel referred to certain passages in Halsbury’s Laws of England (4th Edition Volume 24 paragraphs 1030, and 1031) in which it was stated that when an illegal act which affects the public is committed or threatened the Court has jurisdiction to grant an injunction at the suit of the Attorney General; that the public is concerned to see that Acts of parliament are observed; and that the court has jurisdiction to grant an injunction even though the right was conferred by a statute which prescribed criminal sanctions for its enforcement.
Mr. Gleeson, on the defendants” behalf, submitted at the close of the plaintiffs” case that the remedy now being sought by the plaintiffs was unconstitutional and furthermore that the courts had no jurisdiction in equity to grant the relief claimed. The argument proceeded as follows. It was said that the proceedings amounted to an unprecedented attempt to make a finding of criminal guilt in civil proceedings and that such a course of action infringed Article 31.1 of the Constitution which provides that no person shall be tried on any criminal charges save in due course of law. The State, it was urged, had ignored the criminal remedies available to it and had opted instead for declaratory and injunctive relief. To obtain this relief the State was required to establish that criminal offences had taken place and the State thereby had deprived the defendants of a criminal trial. The State cannot abandon the criminal code and opt for a trial in a civil action in which the level of proof is different. Counsel referred to the three English cases relied on by the plaintiffs (A.G. -v- Sharp (1931) 1Ch. 121 and A.G. -v- Premier Line Limited (1932) 1Ch.303 and A.G. -v- Harris (1961) 1 QB 74), and pointed out that in each of these cases criminal prosecutions had been instituted before the Attorney General had applied to the High Court for relief by way of injunction. It was conceded that in certain circumstances the Attorney General can apply for an injunction to restrain a breach of statute but it was urged that when a criminal sanction is contained in the statute the application can only be brought after it has been shown that the criminal proceedings have been ineffective.
I was also referred to the recent decision in the High Court inCampus Oil Limited -v- A.G. (unreported) 24th March, 1983. This was a case in which the Attorney General applied for an interlocutory Order to restrain the plaintiffs from failing to comply with the provisions of the Fuels (Petroleum Oils) Order 1983 which had been made under the provisions of Section 2 of the Fuels (Control of Supplies) Act, 1971. In that case an injunction was granted on the application of the Attorney General notwithstanding the fact that breaches of the statutory order involved criminal sanctions under the 1971 Act. Counsel, however, maintained that the plaintiffs in that case had not argued that the penalty provisions of the 1971 Act were a bar to the relief claimed by the Attorney General and so it is not authority to justify the court granting relief in the present case.
The role of the Attorney General as guardian of the public interest has, I think, been correctly stated by Professor Casey in “The Office of the Attorney General in Ireland” at page 149 where he writes:
“It is possible “(for the Attorney General)” to obtain an injunction to restrain someone from acting in breach of a statutory provision even where his action constitutes an offence”.
The authority quoted for this statement is theAttorney General (O’Duffy) v. Mr. Appleton, Surgeon Dentist, Ltd. (1907) 1 I.R. 252. This was a relator action in which the Irish branch of the British Dental Association alleged that a company had been formed for fraudulent purposes contrary to the Dentists Act, 1878 and it was held that the Attorney General suing in the public interest was entitled to an injunction. In the course of his judgment the Master of Rolls said:
“The only real difficulty that has occurred to me in this case was that of jurisdiction. This is a new offence. There is a remedy provided under the Dentists Act – that is, by prosecution of the offender in a Court of Summary Jurisdiction. Generally speaking, where there is a new offence the remedy given by the statute creating the offence is exclusive. But the existence of a power to sue for penalties does not of itself prevent the interference of the Attorney General seeking an injunction in the interests of the public by way of information. The public interests are committed to the care of the Attorney General, as representing the Crown, and in that way he represents the public.” (p.257)
The more recent authorities in England do not, in my view alter the legal situation I have just quoted. Whilst undoubtedly there are differences between the roles and functions of the Attorney General in this country and those of the Attorney General of England and Wales none the less assistance can be found in recent English authorities in determining (a) the jurisdiction of the courts to entertain an application for an injunction at the suit of the Attorney General when breaches of statute have been established and (b) the exercise of the court’s jurisdiction in such circumstances – decisions which do not conflict with the earlier Irish authority I have quoted. Firstly, I accept as correct the following general principle:
“Whenever parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless, the High Court always has a reserve power to enforce the law so enacted by way of an injunction or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do”.
Per Lord Denning N.R.A.G. -v- Chaudry 1971 1 W.L.R. 1614,1624
Secondly, the Attorney General as part of his general power to enforce in the public interest public rights has the right ex officio to apply for an injunction to restrain breaches of statute, even when the statute prescribes other remedies, including criminal sanction.
Thirdly, whilst the High Court has jurisdiction to grant an injunction in the circumstances just outlined the jurisdiction should only be exercised in exceptional cases (seeGouriet -v- U.P.W. 1978A.C. 435).
Fourthly, in deciding whether to exercise its jurisdiction the court will consider the adequacy of the alternative statutory remedy. If satisfied that these alternative remedies are inadequate then the court can properly grant relief by way of injunction. In deciding on the adequacy of the alternative remedies, however, the court must look at all the circumstances of the case and the fact that a criminal prosecution has not been brought does not in itself preclude the court from granting an injunction.
I have come to the conclusion that this is a case in which the Attorney General has established that there are exceptional circumstances and that it is one in which it would be just and convenient to grant the remedies sought. Counsel has informed me that the reason why these proceedings were instituted was that it was considered that the penalties imposed by the Act were totally inadequate and that criminal sanctions would be wholly ineffective to remedy the situation. I have no reason to disagree with the conclusions which the Attorney General had reached. A criminal offence is created by sub-section (4) of Section 34 of the 1908 Act which provides that if a person conveys any letter or makes a collection of excepted letters for the purpose of conveying them by post or otherwise he is liable to be fined a sum not exceeding £5 for every letter. This fine was established three-quarters of a century ago and it seems to me to be totally inadequate to meet the circumstances of the present case. It seems to me that it was unnecessary for the Attorney General to consider requesting the Director of Public Prosecutions to institute criminal proceedings and then to await to see whether if successful the defendant company would pay the fine and desist trading. It was reasonable for him to assume that in this case the deterrent effect of the sub-section was in fact negligible and so it seems to me reasonable for the court to exercise its discretion in the plaintiffs” favour.
There is, however, another reason peculiar to the particular provisions of the 1908 Act which clearly establishes the right of the Attorney General to apply for equitable relief and justifies the court in granting it. The 1908 Act contains two different sanctions, a criminal one and also a civil remedy. Sub-section (5) of Section 34 provides that if any person is in the practice of doing any of the acts prohibited by sub-section (4) then he shall forfeit for every week during which the practice continues £100. Section 70 provides that the fine or forfeiture imposed by the Act may be recovered by an action in the High Court. Thus the statutory remedy for breach of the Minister’s exclusive privilege is not one confined to the criminal courts and the defendants cannot complain that it is unjust that the issues in dispute between them and the Minister should be tried in a Civil Court where the onus of proof is different to that in a criminal court. Here the dispute could have been determined in a civil court if the Minister had chosen to institute proceedings in the High Court to recover the fine and/or the forfeiture to which I have referred. If the civil remedy is ineffective then there can be no objection to the Attorney General exercising in the public interest his right to apply to stop the statutory breaches by means of a High Court injunction and there is no reason why the Court should not exercise its discretion and prohibit the continued breaches of the law which the evidence shows is taking place.
Once it is clear that the courts have jurisdiction to grant an injunction even in cases where criminal sanctions exist in respect of the acts complained of then no constitutional impropriety is involved if it exercises that jurisdiction as requested. The courts are not then trying a criminal charge within the meaning of Article 38 of the Constitution but are merely exercising a distinct and different jurisdiction in civil proceedings.
There will be a declaration and an injunction in the forms set out in paragraphs 12 (a) and (b) of the Statement of Claim except that the word “packet” will not form part of the declaration or the injunction as the delivery of “packets” has not been established.
Oblique Financial Services Ltd v The Promise Production Company Ltd
[1994] 1 ILRM 74
JUDGEMENT OF MR JUSTICE KEANEDelivered 24th February 1993
TRANSCRIPT OF JUDGEMENT
I hereby certify the following to be true and accurate transcript of myshorthand notes of the above named judgement.
This is an application under Section 11 of the Jurisdiction of CourtsEnforcement of Judgements (European Communities) Act, 1988, which provides:
2 “(1)Where – (a) proceedings have been commenced or are to becommenced in a Contracting State other than the State, and (b) they areor will be proceedings whose subject – matter is within the scope of the1968 Convention as determined by Article 1 (whether or not the 1968Convention has effect in relation to the proceedings), the High Courtmay, on application to it pursuant to Article 24, grant provisional,including protective, measures of any kind that the Court has power togrant in proceedings that, apart from this Act, are within itsjurisdiction.
(2) On an application under Subsection (1) of this section, the HighCourt may refuse to grant the measures sought if, in the opinion of thatCourt, the fact that the Court has not jurisdiction, apart from thissection, in relation to the subject-matter of the proceedings inquestion makes it inexpedient for that Court to grant suchmeasures.”
The background to the present case is as follows. The Plaintiff is acompany, incorporated in the United Kingdom, which according to theAffidavit filed on its behalf in these proceedings, is essentiallyengaged in marrying financial sources with production sources. And isthereby earning for the company fees from investment clients,particularly from film revenues. The Plaintiff Company entered into acontract with the First Named Defendant in these proceedings relating tothe financing of a film, to be called “The Promise”. And thePlaintiffs say that the terms of that agreement are that what wasdescribed as “absolute and total confidentiality” would bemaintained by the parties to that agreement in relation to anyinformation as to the transaction which they acquired as a result ofentering into the agreement.
The Plaintiffs say that the First and Second Named Defendants are inbreach of that agreement by disclosing certain information, which theyacquired as the result of having entered into the agreement or in thenegotiations pleminary thereto, to other persons, and the matter, whichthey say, that particularly concerns them is that the identity of aninvestor in this country, was disclosed by the First and Second NamedDefendants to other parties. This, they say, is in clear breach of theagreement by the First and Second Named Defendants to preserveabsolutely confidentiality in relation to these matters.
The application for interim protective measures, under the Section, towhich I have referred, is brought solely against the Third and FourthNamed Defendants, who are Publishers and Editor, respectively, of thePhoenix Magazine, and who have indicated their intention to publish in aforthcoming issue, information disclosed to them, including the name ofthe investor, the identity of the investor in question.
On Friday last, Mr Justice Geoghegan granted an Interim Injunction tothe Plaintiffs in these proceedings, which they indicated they intendedto issue in the Queen’s Bench Division of the High Court of Justice ofEngland and Wales, as against all the Defendants. The application forthe Interim Injunction was brought solely against the Third and FourthNamed Defendants, under the Section of the Judgements Act to which Ihave already referred.
It is accepted by Counsel for both the Applicant and the Respondent thatthe substantive case, the substantive proceedings are being institutedin an English Court, and it will fall to be decided by that Court inaccordance with English law. However, the application, as envisaged bySection 11, and it is also accepted by Counsel, must fall to bedetermined by this Court, in accordance with the principles of Irish Lawapplicable to granting or withholding of an Interlocutory Injunction. Asit happens, there is no significant difference in the law in thiscountry and the law in England and Wales as to the principles thatshould be applied by the Court in granting or withholding aninterlocutory injunction, with one important proviso, and that is, butagain, it has been agreed by Counsel, that the Court, cannot by itsOrder, in an application of this nature, abridge the constitutionalrights, the rights enjoyed under the Irish Constitution, by any of theparties to the action.
The Plaintiffs instituted the proceedings, joining the Third and FourthNamed Defendants, relying on the doctrine of confidentiality laid downin a number of decisions both in this country and in England. And theRespondents to this application do not dispute the factual or legalbasis of the claim against the First and Second Named Defendants, butthey make their own defence to the application on the straightforwardgrounds that they make the distinction between their situation and whatthey see as the situation which may or may not be the position inrelation to the First or Second Named Defendants. They say theyowe no duty, contractual or otherwise, of confidentiality, to thePlaintiffs. And they also submit that their constitutional rights tofreedom of expression would be infringed by the granting of anInterlocutory Injunction sought by or on behalf of the Plaintiffs, underArticle 40.6(1) of the Irish Constitution.
Now, the first issue that has to be determined is whether or not thePlaintiff has established a serious question to be tried as against theThird and Fourth Named Defendants. I have no doubt but that they haveestablished a serious question; and it is sufficient in this context torefer to the decision of the Supreme Court, upholding a decision of theHigh Court in the case of House of Spring Gardens Ltd v Point BlankLtd., which is reported in the Irish Law Reports 1984, at Page 611, inwhich the statement of the law by Mr Justice Costello was upheld by theSupreme Court. In the Supreme Court, Chief Justice O’Higgins cited hisapprovel of the statement of the law by Lord Greene, Master of theRoles; he stated as follows: “If a Defendant is proved to haveused confidential information, directly or indirectly obtained from aPlaintiff, without the consent, expressed or implied of the Plaintiff,he will be guilty of an infringement of the Plaintiffsrights”.
Now, it is also obvious from the passages in a number of the casesreferred to in that case and also cited in the course of the argumentshere before me, that the obligation of confidentiality which is enforcedby the courts, is not merelyapplicable to the parties to the contract, but also in relation to thirdparties who may also come into possession of that information. In thiscase a similar obligation arises, whether by reason of some contractualobligation or some moral obligation. It is obvious from the cases, andindeed it is a matter of common sense that the right to condidentiality,which the law recognises in these cases, would be of little value, ifthe third parties to whom this information has been communicated were atliberty to publish it to another party, or in this case, to publish itto the general public, without the court being in a position tointervene.
So, that being that statement of the law, both here in Ireland and inthe United Kingdom, it is quite clear that the legal position wouldappear to be that the obligation of confidentiality of a company can beenforced as against third parties. It is again necessary to point outthat this a preliminary application, interlocutory in its nature and itis, therefore, not for this Court to express a final view on any of thematters which might be mentioned by any of the parties to thispreliminary application. They will ultimately be determined by anEnglish Court in the substantive proceedings; but it is sufficient, forthe purposes of this application by the Plaintiffs, that a seriousquestion is to be tried as to whether or not the Third and Fourth NamedRespondents, are also bound not to engage in publishing matters ofcondidentiality arising from the agreement between the Plaintiffs andthe other Defendants.
As I indicated already, it was contended on behalf of the Third andFourth Named Defendants that granting the injuctive relief wouldinfringe the constitutional rights of the Respondents as an organ ofopinion under Article 40.6(1) of the Constitution. Clearly, if thatsubmission were well founded then at this stage, irrespective of whatmight happen in the proceedings in England, it would not be appropriatefor this Court to grant an injunction which would infringe theRespondents” constitutional rights.
However, this interpretation of the Constitution, is, in my viewmisconceived. It is clear from the decision of Mr Justice Costello inthe case of the Attorney General v Paper Link, which is reported in the1984 Irish Law Reports Monthly, at Page 373, that the rights of theRespondents in a case such as this, flow not from Article 40.6(1),dealing generally with freedom of expression, but from Article 40.3(1),which guarantees the personal rights of the citizen. Article 40.6(1) isconcerned, not with the dissemination of factual information, but therights of the citizen, in formulating or publishing convictions oropinions, or conveying an opinion; and the rights of all citizens,including conveying information, arises, in our law, not under Article40.6(1), but from Article 40.3(1).”
In my view, it is clear from the statement of the law by Mr JusticeCostello, in that case of the Attorney General v Paper Link, that thisright under the Constitution is not an absolute right, but one which isqualified, having regard to other legalconstraints. And, in the course of his judgement in that case, MrJustice Costello says: “As to the assertion that there exists inthe Constitution “a right to communicate freely”…… Along with othe citizens they enjoy a right tocommunicate” [End of Quotation]
Now, applying those principles to the present case, theRespondents” right to communicate information must be subject toother rights and duties, and in particular, to the right ofconfidentiality enjoyed by, or alleged to be enjoyed by the Plaintiff.Accordingly, while the substantive action remains to be determined bythe English Courts; if that Court should find against the Respondents itwould not be a breach or an infringing of the constitutional rights ofthe Respondents for the reasons which I have indicated.
This again, it must be emphasised is a preliminary application to theCourt, for interlocutory relief. It should be said, if the Third andFourth Named Respondents failed in the proceedings in the English Court,it would be open to them to resist any enforcement of the judgement inthis Court on the ground of public policy. It is open to them at thatstage to contest the enforcement by the Court of the Order on the groundthat their constitutional rights are being infringed; that indeed, isconceded by Counsel on behalf of the Plaintiffs.
The next question is whether or not more damage would be caused bygranting the injunction than by its being withheld. It has beensubmitted on behalf of the Respondents, and it is recognised of course,that the damage they would sustain, by reason of non publication, isnecessarily hard to quantify; and it is said on behalf of theRespondents that the undertaking is not of any great value to him. Thatmay well be so, and if that were to be the grounds for the withholdingof the relief, the interlocutory relief, then it would apply tovirtually every application of this nature where the respondent, if theywere in the posiition, as the present Respondents say they are, that asthey were publishing newspapers or periodicals of any sort in which aconsiderable amount of material and information is regularly published,so it would be difficult for the Respondents to quantity the position,if an injunction was wrongly granted, of the amount of any losssustained by them. If that proposition were correct, then it wouldfollow that in cases where breach of confidentiality arises it would ineffect, be impossible for the courts to grant interlocutory relief,however unjust the consequences, if the Respondents, were, as in thepresent case, publishers in magazines or periodicals, of a large volumeof information and comment other than the impugned material. Bycontrast, it appears that the Plaintiffs, quite clearly, by the verynature of their enterprise, and the importance that they attach to thecondifentiality of the information arising in the course of suchtransactions, it is obvious that the Plaintiff, if the case waswell-founded, would indeed, suffer serious, andperhaps, irreparable damage, by the publication of material of thisnature.
That would be sufficient to indicate that this is a case whereinterlocutory relief should issue, without considering where the balanceof convenience lies. If I were to consider where the balance ofconvenience lies, the whole point of a case like this, is to preservethe status quo pending the resolution of the action; and the status quowould be the non-publication of the material pending a decision by theEnglish courts as to whether indeed the question of confidentialityarises. I will, accordingly accede to the granting of an InterlocutoryInjunction, in the same terms granted by Mr Justice Geoghegan on theapplication for an interim injunction that will of course, be subject tothe undertaking to the court, pending the resolution by the courts inEngland of the substantive issues.
Irish Times Ltd. v. Ireland
[1998] IR 376
Hamilton C.J. 376
By orders of the High Court (Geoghegan J.) made on the 7th February, 1997, the Irish Times Limited, the Independent Newspapers (Ireland) and the News Group Newspapers Limited and the Examiner Publications (Cork) Limited (hereinafter referred to as the applicants) were granted leave to apply for an order of certiorari of an order made by His Honour Judge Anthony G. Murphy, the third respondent herein, on the 6th February, 1997, in proceedings entitled The Director of Public Prosecutions v. Howard Charles Millar , The Director of Public Prosecutions v. James Noel , The Director of Public Prosecutions v. Roman Smolen , and The Director of Public Prosecutions v. Theresa Bernadette da Silva Roy whereby the said applicants were enjoined from publishing and, directed not to publish, in their newspaper reports of the trial of the said criminal proceedings. The grounds upon which such leave was sought and granted were set forth in the statement of grounds filed on behalf of the said applicants.
The said orders made by the third respondent provided that there should be no contemporaneous media reports of the said proceedings save of:-
1. the fact that the trial is proceeding in open court;
2. the names and addresses of the accused parties;
3. the nature of the crimes alleged in the indictment; and
4. where the trial is taking place;
and that the reports should not refer to the fact that the accused were in custody or the fact that the captain of the vessel had pleaded guilty to the charge.
An order in similar terms to those granted on the 7th February, 1997, was granted in favour of Radio TelefÃs Éireann by the High Court (Kelly J.) on the 10th February, 1997, as this applicant was also affected by the said order made by the respondent.
The aforesaid orders directed that the notice parties in the title hereof be served with notice of the proceedings and statements of opposition were filed on behalf of the first two notice parties.
The circumstances which led to the making of the aforesaid applications, are set forth in detail in the judgment about to be delivered by O’Flaherty J., which I have read and there is no need for me in the course of this judgment to set forth such facts.
As the issues raised in the statements of grounds and statements of opposition were, in fact, common to each applicant, the applications were heard contemporaneously by the learned trial judge (Morris J.) and he delivered a composite judgment reported at [1998] 1 I.R. 359. As he stated, in the course of the said judgment, the issues which arose in the hearing before him concerned at p. 366:-
“firstly the powers, if any, which a trial judge has to either prohibit or limit the reporting of a criminal trial which is proceeding before him and secondly, if he does have such powers, the manner in which they should be exercised.”
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 this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
As stated by Walsh J. in the course of his judgment in In re R. Ltd. [1989] I.R. 126 at p. 135:-
“It is already well established in our constitutional jurisprudence that a phrase such as ‘save in such special and limited cases as may be prescribed by law’ which appears in Article 34, s. 1 of the Constitution is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution.”
It was submitted to the High Court on behalf of the applicants herein that the order made by the learned Circuit Court Judge contravened the provisions of this Article of the Constitution.
It was submitted in the High Court and in this Court that the order prohibiting contemporaneous media reports of the proceedings before him other than the report of the facts set forth in the said order had the effect of rendering the conduct of the trial, the subject of the order, other than in public and thereby contravened the provisions of Article 34.1 of the Constitution.
This submission was accepted by the learned High Court Judge who stated that at p. 367:-
“I do not accept that a trial being held subject to the limitations on publication imposed by the learned trial judge in this case is being held ‘in public’.”
He then referred to a passage from the speech of Diplock L.J. in Att. Gen. v. Leveller Magazine [1979] A.C. 440, where he stated at p . 449:-
“As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to the wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”
and agreed with this statement of law as being appropriate to this jurisdiction.
This right of contemporaneous publication by the media to a wider public of fair and accurate reports of proceedings that have taken place in court is impliedly recognised by the Oireachtas in s. 18 (i) of the Defamation Act, 1961, which provides that:-
“A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged.”
In the course of his judgment in Cullen v. ToibÃn [1984] I.L.R.M. 577, O’Higgins C.J. stated at p. 582:-
“. . . the freedom of the press and of communication which is guaranteed by the Constitution . . . cannot be lightly curtailed.”
Having held that the restriction placed by the Circuit Court Judge upon contemporaneous publication of proceedings by the media of court proceedings constituted an infringement of Article 34 of the Constitution, the learned High Court Judge then posed the following question at pp. 367 and 368:-
“If, therefore, restriction upon contemporaneous publication of proceedings by the media of court proceedings constitutes an infringement of Article 34 in that the proceedings are not being held ‘in public’, are there any circumstances in which such a restriction can be imposed?”
In considering this question he stated that:-
“It is, in my view, clear beyond doubt that in reaching his decision in the present case the learned trial judge had in the forefront of his mind the accused’s right to a fair trial in due course of law as was his right under Article 38.1 of the Constitution . . .”
Article 38.1 of the Constitution provides that:-
“No person shall be tried on any criminal charge save in due course of law.”
The learned High Court Judge was correct in his view that the learned Circuit Judge had in the forefront of his mind, at the time of making his order, the accused’s right to a fair trial in due course of law.
The learned Circuit Judge had stated on the 6th February, 1997, in the course of delivering judgment on an application by the applicants herein to lift the order made by him prohibiting media reporting of the trial of Director of Public Prosecutions v. Millar, Noel, Smolen, da Silva and Richards :-
“Well, obviously in general the interests of the media must be secondary to the interests of justice and of the accused people. The accused people in the trial are not Irish citizens, one is from very far away indeed. They are all in custody and there is no question of their being other than in custody until those proceedings are terminated. If they are found to be guilty of the crimes with which they are charged they will have been in custody, in jail, for a considerable time and that is an oppression, albeit a necessary oppression, whatever way one looks at it. It is an oppression for which they have no remedy against those who incarcerated them. Their interest must be served first, the interests of justice, of which that interest forms part, must be served next and the public interest served thereafter.”
The learned Circuit Court Judge then went on to say that:-
“Now the ban on publication of this case was not to hold the trial in camera. The doors of the court are open, seats are available, the trial is held in public. The question is whether the media can inform the public of the day to day minutia of the trial. I considered the risk to the accused people and the risk to the trial having regard to what happened and having regard to what was happening. I could see it was going to happen again, that this trial will be aborted and they will be back in custody for a considerable period.
Why did I take this view? I had reliable information that it started on a sinister footing on Tuesday last. It was reported on radio that day a jury was to be sworn to try this case. That of course was inaccurate. No jury panel had been summoned for that day. It was also reported that some of the jury panel having heard this dropped what they were doing and ran for this courthouse. This was not a very accurate report.
Today we have another report in the Evening Echo presented to me at 2.30, it now being 5 o’clock and this application having started at 4.20, saying that the Echo was in court today fighting an order banning the newspaper from reporting the case. The Irish Times also made a report on the matter today.
The public must be informed that the trial is proceeding but I believe that there is in existence a judicial discretion, if the judge is satisfied that interference is possible, that he may interfere with the immediate interests of the media. This is not a ban on reporting. This is not a ban on the public. This is a delay which cannot conceivably adversely affect the public interest and for the reasons stated I think it was quite justified.”
The learned High Court Judge was of the view that the provisions of Article 34.1 had to be considered in the light of the Constitution as a whole and in particular with regard to the provisions of Article 38.1 and Article 40.6.1 of the Constitution and held that the learned Circuit Court Judge had balanced the right of the accused persons to a fair trial against the media’s and the citizens’ “right to freedom of expression”.
He stated that at p. 370:-
“The learned trial judge in balancing these two rights clearly found that the accused’s right to a fair trial was paramount and ranked higher in the hierarchy of rights than the right of the media to contemporaneous reporting. In this conclusion, he was undoubtedly correct (see the judgment of Denham J. in D. v. Director of Public Prosecutions [1994] 2 I.R. 465).”
In the course of her judgment in that case Denham J. had stated at p. 474:-
“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.
A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.
If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”
These statements apply with equal force to the media’s right to publish and the public’s right to know and be informed.
It is important, however, to emphasise that Denham J., in this passage from her judgment, refers to a “real risk” of an accused person not receiving a fair trial.
In this regard, Finlay C.J. in the course of his judgment in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, stated at p. 507:-
“With regard to the general principles of law I would only add to the principles which I have already outlined, the obvious fact to be implied from the decision of this Court in D. v. The Director of Public Prosecutions, that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.”
The learned High Court Judge having cited this passage from the judgment of Finlay C.J. stated at p. 374:-
“It follows, therefore, in my view that before a judge presiding over a trial imposes a ban on reporting, he must be satisfied of two things –
(a) that there is a ‘real risk of an unfair trial’ if contemporaneous reporting is permitted, and
(b) that the damage which such improper reporting would cause could not be remedied by the trial judge either by appropriate direction to the jury or otherwise.”
Applying these tests, he concluded that the learned Circuit Court Judge was justified in concluding that a real risk existed and held that he was empowered to make the order that he did, that in doing so he applied the correct criteria and the law, that there was material upon which he was justified in reaching the conclusions that he did, that nothing in his approach to the case removed from him his jurisdiction and that the order he made was valid.
Appeal
The applicants have appealed against the judgment and order of the learned High Court Judge and the respondents have appealed against such portion thereof as found that the trial before the learned Circuit Court Judge was not a trial being held in public within the meaning of Article 34.1 of the Constitution by reason of the order made prohibiting the contemporaneous reporting of the details thereof.
Two fundamental issues arise for consideration in this appeal:-
1. Whether the trial held before the learned Circuit Court Judge was a trial being held in public within the meaning of Article 34.1 of the Constitution by reason of the order made prohibiting the contemporaneous reporting of the details thereof?
2. Whether, in the particular circumstances of this case, it was open to the learned Circuit Court Judge to prohibit the contemporaneous reporting of the trial by the applicants herein on the grounds that there was a real risk of an unfair trial if such reporting were permitted?
These issues are of fundamental importance as they relate to a fundamental principle of the administration of justice in a democratic state, namely, the administration of justice in public.
Maintenance of, and respect for, the rule of law is an essential ingredient in the working of a democratic state.
While the organs of government are subject to the rule of law and the Constitution, it rests primarily on the judicial arm of government to uphold the Constitution and the law and to administer justice in public on behalf of all the inhabitants of the State.
In so doing, the judicial arm of government must fulfil and be seen to fulfil, its obligation in this regard.
This obligation is best fulfilled by the administration of justice in public. Justice is best served in an open court where the judicial process can be scrutinised. In a democratic society, justice must not only be done but be seen to be done. Only in this way, can respect for the rule of law and public confidence in the administration of justice, so essential to the workings of a democratic state, be maintained.
This obligation to administer justice in public pre-dated the enactment of the Constitution and was well-recognised at common law.
As stated by Walsh J. in the course of his judgment in In re R. Ltd. [1989] I.R. 126, at pp. 134 and 135:-
“Prior to the enactment of the Constitution the question of whether or not particular matters should be held in public was a matter for the discretion of the judges subject of course always to particular statutory provisions which dealt with the subject. However it was always quite clear that the judges had no discretion to prevent the public from attending hearings unless they were satisfied that either total privacy for the whole or part of any case was absolutely necessary to enable justice to be done. The primary object of the courts is to see that justice is done and it was only when the presence of the public or public knowledge of the proceedings would defeat that object that the judges had any discretion to hear cases other than in public. It had to be shown that a public hearing was likely to lead to a denial of justice before the discretion could be exercised to hear a case or part of a case other than in public.”
This common law principle was in effect copper-fastened by the provisions of Article 34.1 of the Constitution which however limited to some extent the discretion previously enjoyed by judges.
Article 34.1 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.”
The obligation contained therein providing for the administration of justice in public is not discharged by conducting a trial to which the public, including the media, are admitted but in respect of which there is in force an order prohibiting the media from contemporaneous reporting of the proceedings.
The effect of such an order in this case was to deprive the wider public, who did not have access to the court in which the proceedings were being conducted, of knowledge of the proceedings. Knowledge of the proceedings was limited to those inhabitants of the State who were able to be present in the courtroom in which the trial was being conducted.
As justice is required to be administered in public on behalf of all the inhabitants of the State, such inhabitants are entitled to be informed of the proceedings in the court and to be given a fair and accurate account of such proceedings and the media are entitled to give such an account to the wider public.
The public nature of the administration of justice and the right of the wider public to be informed by the media of what is taking place are matters of the greatest importance.
Such a right is not however an absolute one.
In the first instance it can be limited, as provided in Article 34.1 itself, in such special and limited cases as may be prescribed by law.
O’Flaherty J., in the judgment which he is about to deliver, instances a number of such cases which have been prescribed by law and there is no need for me, in the course of this judgment, to repeat them.
It was submitted on behalf of the applicants that in the absence of “an express statutory provision” as that phrase was used by Walsh J. in In re R. Ltd. [1989] I.R. 126, no general discretion lies in the court to order a trial otherwise than in public and that as there was no statutory enactment relevant to the instant case, there was no discretion or jurisdiction vested in the learned Circuit Court Judge to make an order that it be tried otherwise than in public.
The effect of such submission, if valid, would be to remove from a trial judge the jurisdiction and discretion which he enjoyed at common law to prohibit reports of proceedings when he considered such reporting would frustrate or render impractical the administration of justice and to vest in the Oireachtas solely the jurisdiction of deciding what aspects of the administration of justice would be conducted in private.
A literal interpretation of Article 34.1 of the Constitution, if construed alone, would appear to support the submission made on behalf of the applicants but Article 34.1 must be construed in the light of the other provisions of the Constitution and in particular Article 38.1 which provides that:-
“No person shall be tried on any criminal charge save in due course of law.”
In her judgment in D. v. The Director of Public Prosecutions [1994] 2 I.R. 465, Denham J. stated at p. 473 that:-
“The applicant’s constitutional rights must be protected. Under the Constitution, Article 38, s.1:-
‘No person shall be tried on any criminal charge save in due course of law.’
The unenumerated rights of Article 40, s.3 incorporate a right to fairness of procedures. Fair procedures incorporate the requirement of trial by jury unprejudiced by pre-trial publicity. The applicant is entitled to a jury capable of concluding a fair determination of facts on the facts as presented at the trial.
The applicant’s right to a fair trial is one of the most fundamental constitutional rights accorded to persons. On a hierarchy of constitutional rights it is a superior right.”
While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.
I am satisfied that the exercise of the rights conferred by Article 34.1 can be limited, not only by Acts of the Oireachtas, but also by the courts where it is necessary in order to protect an accused person’s constitutional right to a fair trial.
The right of an accused person to receive a fair trial is entrenched in our legal system and confirmed by the provisions of the Constitution and is a right superior to any rights arising from the provisions of Article 34.1 of the Constitution.
As I stated in the course of my judgment in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, at p. 493:-
“Having regard to the fundamental role of juries in our criminal justice system, it is fundamental that for an accused to have a fair trial, not only that the trial should be conducted in accordance with fair procedures, but the jury should reach its verdict in a criminal case by reference only to the evidence lawfully admitted at the trial and not by reference to facts, alleged or otherwise, contained in statements or opinions gathered from the media or some other outside sources because fair procedures incorporate the requirement of trial by a jury unprejudiced by pre-trial publicity and capable of concluding a fair determination of facts on the evidence as presented at the trial.”
While in that case I was dealing with the question of pre-trial publicity, my remarks apply equally to publicity during a trial.
D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions referred to in the course of this judgment dealt with applications to prohibit the holding of trials because of alleged prejudice arising from pre-trial publicity but many of the statements contained in the judgments of these cases are relevant to the issues under consideration in this appeal.
It is the function and role of a trial judge in the conduct of criminal proceedings to ensure that the trial of an accused person is conducted in accordance with fair procedures and to ensure, so far as practicable, that the jury should reach its verdict by reference only to evidence lawfully admitted at the trial and not by reference to facts, alleged or otherwise, contained in statements or opinions gathered from the media or any other outside sources.
He is further under an obligation to hold the trial in public and not to interfere or in any way restrict the right of the media to publish a fair and accurate report of the proceedings publicly heard before the court unless such publication is prohibited by law or would interfere with or prejudice an accused person’s right to a fair trial.
An accused person’s right to a fair trial includes the right to have the jury reach its verdict by reference only to evidence lawfully admitted at the trial.
It is hard to envisage any circumstances (other than where a “trial within a trial” is held for the purpose of determining whether particular evidence is admissible or where persons are jointly indicted but tried separately) in which fair and accurate reporting in or by the media of such evidence could in any way interfere with or in any way prejudice this right or compromise the proper administration of justice. Neither of the said exceptional circumstances arise on the facts of this case.
The learned Circuit Court Judge was undoubtedly concerned and apprehensive, for the reasons stated by him, that the contemporaneous reporting of the trial might lead to a situation which would oblige him to abort the trial and to order the continued detention of the accused pending the re-trial and was anxious to ensure that such a situation would not arise.
The learned Circuit Court Judge, however, was not entitled on the evidence before him to assume that the reporting of the proceedings in the course of the trial would be other than fair and accurate or that such reporting would in any way prejudice the administration of justice or the accused person’s right to a fair trial and lead to an abortion of the trial.
Neither was he entitled to assume at that stage that even if the reporting proved to be inaccurate or unfair and that if such inaccuracy or unfairness came to the attention of the jury, the situation thereby created could not be avoided by appropriate rulings and directions to the jury.
The learned High Court Judge (Morris J.) had properly concluded that at p. 374:-
“. . . before a judge presiding over a trial imposes a ban on reporting he must be satisfied of two things:-
(a) that there is a real risk of an unfair trial, if contemporaneous reporting is permitted, and
(b) that the damage which such improper reporting would cause could not be remedied by the trial judge either by appropriate directions to the jury or otherwise.”
I would agree that this is the correct test but am satisfied that there was no evidence before the learned Circuit Court Judge which would justify him in holding that there was a real risk of an unfair trial if contemporaneous reporting of the trial was permitted. He was not entitled to assume that such reporting would be other than fair and accurate.
Should it transpire that the subsequent reporting of the proceedings was not fair and accurate and that such unfairness and inaccuracy was such as to interfere with the integrity of the trial process then the trial judge has adequate powers under the contempt of court procedure to deal with the matter so far as the media was concerned and by giving appropriate directions to the jury.
Consequently, I am satisfied that the learned Circuit Court Judge had, in the circumstances of this case, no jurisdiction to make the order sought to be quashed and that he erred in law in so doing.
I would allow the appeal.
Before concluding, I would, however, like to state that there have been in the recent past many trials which have been aborted because the trial judge considered that the integrity of the trial process had been interfered with by reason of the manner in which the trial was being reported in the media and that there was a real risk of an unfair trial.
The risk to a fair trial would arise if such reporting came to the attention of the jury and facts and opinions contained therein were likely to influence the jury in the consideration of their verdict.
A trial judge is entitled to discharge a jury in such circumstances only if he is satisfied that the situation thereby created,viz. the risk of an unfair trial, cannot be avoided by appropriate rulings and directions.
Save in exceptional circumstances, a trial judge should have confidence in the ability of the jury to understand and comply with such directions, to disregard any inadmissible evidence and to give a true verdict in accordance with the evidence. It is only when this is not possible that the extreme step shall be taken of discharging the jury.
O’Flaherty J.
On the 4th February, 1997, five accused appeared at the Cork Circuit Criminal Court before the third respondent charged on two counts of importing and possessing, with intent to supply, the illegal drug cocaine. A quantity of cocaine to the value of over £40 million was found on board a converted trawler, theSea Mist, by customs and garda officers in Cork Harbour on the 29th September, 1996.
The captain of the vessel, Gordon Richards, pleaded guilty to the count of possession with intent to supply and was put back for sentence until the trial of the other four accused (named as notice parties in the title hereof) was finished.
Their trial commenced on the 6th February, 1997, and the hearing continued for 15 days thereafter and concluded on the 27th February, 1997. Three of the accused were acquitted by direction of the trial judge. Roman Smolen was acquitted by the jury.
On Tuesday the 4th February, 1997, the third respondent had made an order forbidding the media from reporting the evidence that would be given in the course of the trial. Representatives of various newspapers as well as Radio TelefÃs Éireann (the applicants here) applied to the third respondent on the 6th February, 1997, seeking clarification of and, indeed, the lifting of the blanket ban that had been imposed by him. But the third respondent ruled that the ban on the publication of the evidence must remain until after the conclusion of the trial. The media were only to report:-
(a) the fact that the trial was proceeding;
(b) the names and addresses of the accused parties;
(c) the nature of the crimes alleged in the indictments;
(d) the place where the trial was proceeding;
(e) the fact that the captain of the vessel (Mr. Gordon Richards) had pleaded guilty to a charge of possession and had been put back for sentence.
He further provided that no press report should mention the fact that the accused were being held in custody.
However, the learned trial judge went on to say that the case was not being heldin camera. He said:-
“Now the ban on publication of this case was not to hold the trial in camera. The doors of the court are open, seats are available. The trial is held in public. The question is whether the media can inform the public of the day to day minutiae of the trial.”
It seems that the judge took the extreme course he did because of some mis-reporting that took place on a radio station in relation to another drugs case sometime previously and which led to the discharge of the jury. Further, he was influenced by some false alarm that had been given in relation to this case to the effect that a jury was being sworn on the Tuesday (the 4th February) when such was not the case.
We have not been furnished with any details as to what led the learned judge to discharge the jury on the previous occasion but what is known is that applications are being made too frequently on very tentative grounds to have juries discharged both in criminal and civil cases where some inaccuracy or, it may be, a certain bias in a publication is perceived.
Trial judges have tended on occasion to adopt an undue tenderness towards juries in this regard. If there is an inaccuracy as regards pending or current proceedings, or a slant is put on any case that is thought not to be fair to one party or another, then in most cases this can be put right by the trial judge giving an appropriate direction to the jury either in advance of, or in the course of, the case, as required.
In Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, the case dealt with the impact of very adverse publicity in relation to an accused in advance of a trial, the Chief Justice, then President of the High Court, having reviewed the relevant authorities made the following observation in regard to juries in criminal cases which is apposite to the problem thrown up by this appeal, at p. 496:-
“It is the duty and obligation of juries to act with complete impartiality, complete detachment and without letting matters of sympathy, prejudice, sentiment or emotion take any part and it is the obligation and duty of the trial judge to so instruct them. To have regard to factors other than the evidence, properly admitted and given at the trial, would be to disregard their oath and the clear directions given to them by the trial judge. After eighteen years practice as a member of the Bar of Ireland and over nineteen years service as a judge, I share in the confidence that our judicial system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence.”
It is no doubt because of this trend which has developed and gathered pace in recent times whereby juries are discharged too precipitately, when the justice of the case could be better met by the trial judge giving appropriate directions, which lead the trial judge in this case to guard with, as I come to hold, excessive zeal the integrity of the forthcoming trial. He was conscious that the accused had been in custody for up to five months; if there was an abortive trial they would have to stay in custody for an extra length of time. All of the accused were non-nationals. In the result, as already related, the four accused who stood trial were acquitted.
The applicants challenged the trial judge’s order. They asked that it be quashed on certiorari.The High Court (Morris J.) by its judgment and order of the 18th February, 1997, refused to quash the order.
The applicants appealed to this Court. The appeal could not be reached having regard to the state of the Court’s list and, in any event, the trial was in the course of hearing, two thirds of the way through as it happened. So nothing in this appeal can affect what has transpired. But we can give some guidance for the future which may be of help to trial judges, journalists, as well as the public in general because the issues raised are of outstanding constitutional importance,viz. the right of accused persons to fair trials and the freedom of the press to report court proceedings allied to which is the public’s right to know what goes on in the courts of law, as well as the rights of the parties, on occasion certainly, to require that proceedings in which they are involved are eligible for publication.
While Morris J. did not agree with the trial judge’s assessment that proceedings with such a ban as this constituted a trial in public, nonetheless, he concluded that the trial judge was entitled to come to the conclusion that a total ban on contemporaneous reporting was necessary to protect the accused from risk. He went on to say at [1998] 1 I.R. 359 at p. 373:-
“I make no judgment on whether I would have come to the same conclusion. I am not required to do so. I do find that on the evidence before him the trial judge was justified in reaching the conclusion which he did.”
I interpose to point out that the only “evidence before him” was the matter of the mis-reporting in regard to the previous trial; the false alarm about the summoning of the jury panel and some suggestion that theEvening Echo (owned by the Examiner Group) had reported, in an early edition of the 6th February, 1997, which had appeared about 2.30 p.m., that it was in court fighting an order banning the newspaper from reporting the case when, in fact, the judge did not take up the hearing of this matter until after 4.00 p.m. on that date. However, it is right to say that counsel had indicated to the judge in the forenoon that they would be moving the application later in the day so that while it might not have been strictly accurate to say that one is “fighting”any order in court until the hearing has started, nonetheless, the report was not in substance misleading.
Morris J. concluded that before a judge presiding over a trial imposes a ban on reporting he must be satisfied of two things:-
(a) that there is a “real risk of an unfair trial” if contemporaneous reporting is permitted, and (b) that the damage which [any] improper reporting would cause could not be remedied by the trial judge either by appropriate directions to the jury or otherwise.
While I would uphold that as the correct test, which test of its nature means it should only operate in very limited circumstances, I do not consider that the learned trial judge ever came to apply such a test in the circumstances of this trial.
Article 34.1 of the Constitution provides:-
“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 administer in public.”
The ambit and effect of this provision have been analysed in the context of purely civil proceedings by Walsh J. In re R. Ltd. [1989] I.R. 126, where he said at p.134:-
“The issue before this Court touches a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in courts established by law and shall be administered in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in the cases or that they should have had any business in the courts. Justice is administered in public on behalf of all the inhabitants of the State.
Prior to the enactment of the Constitution the question of whether or not particular matters should be heard in public was a matter for the discretion of the judges subject of course always to particular statutory provisions which dealt with the subject. However it was always quite clear that the judges had no discretion to prevent the public from attending hearings unless they were satisfied that either total privacy for the whole or part of any case was absolutely necessary to enable justice to be done. The primary object of the courts is to see that justice is done and it was only when the presence of the public or public knowledge of the proceedings would defeat that object that the judges had any discretion to hear cases other than in public. It had to be shown that a public hearing was likely to lead to a denial of justice
before the discretion could be exercised to hear a case or part of a case other than in public.”
Later in his judgment, he said at p. 135:-
“It is already well established in our constitutional jurisprudence that a phrase such as ‘save in such special and limited cases as may be prescribed by law’ which appears in Article 34, s. 1 of the Constitution is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution.”
In Beamish & Crawford Ltd. v. Crowley [1969] I.R. 142, the case was an appeal on a point of procedure: what was the appropriate venue for the holding of a trial where the possibility of adverse publicity for the plaintiff’s goods was put forward as one of the factors that should be considered in deciding the venue, Ó Dálaigh , C.J. (speaking for the Court) concluded, at p.146:-
“One need not waste sympathy on the manufacturer whose goods are not of merchantable quality; but the manufacturer whose goods are shown to be of merchantable quality does deserve sympathy . But publicity, deserved or otherwise, is inseparable from the administration of justice in public; this is a principle which, as the Constitution declares, may not be departed from except in such special and limited cases as may be prescribed by law: Article 34, section 1. I cannot accept that the fact that the trial will, for one of the parties, attract more undesirable publicity in one venue than in another is a matter proper to be taken into account in determining the venue; . . .”
In the context of a criminal trial, however, Article 38.1, which provides: “No person shall be tried on any criminal charge save in due course of law” must have paramountcy over the requirement that a trial is held in public. See, for example, D. v. Director of Public Prosecutions [1994] 2 I.R. 465,per Denham J. “. . .on the hierarchy of constitutional rights there is no doubt but that the applicant’s right to fair procedures is superior to the community’s right to prosecute”; at p.474, and, a fortiori, to have the trial held in public.
I agree with the learned High Court Judge that in general if the press are prohibited from reporting contemporaneously the course of proceedings, and the evidence given, the trial loses the character of being a trial held in public. As noted in the account of counsels’ submissions in the old case of R. v. Clement (1821) 4 B & ALD 218, at p. 225:-
“The public good is to be considered; and it is for the public benefit that a faithful account should be published of a transaction of which they might otherwise receive only a garbled account from the mouths of individuals. Such a publication has the effect of in creasing, as it were, the size of a Court of Justice. It brings to the knowledge of others, not personally present, the facts as they really exist.”
Only an Act of the Oireachtas (with a qualification which I note in a moment) can provide for in camera hearings, whether the exclusion of the public be absolute, limited or in the discretion of the judge. Examples are as follows: s. 2 of the Criminal Law (Incest Proceedings) Act, 1995 (exclusion of the public from proceedings for an offence under the Punishment of Incest Act, 1908, other than the verdict or decision and any sentence); s. 6 of the Criminal Law (Rape) Act, 1981, as amended by s. 11 of the Criminal Law (Rape) (Amendment) Act, 1990 (exclusion of the public from the trial of certain sexual offences other than the verdict or decision and any sentence) and s. 20 (3) of the Criminal Justice Act, 1951 (discretion to exclude the public from criminal proceedings for offences which are, in the opinion of the court, of an indecent or obscene nature).
While these enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties. A recent example is to be found in s. 3 of the Criminal Law (Incest Proceedings) Act, 1995, which prohibits the publication of any matter which is likely to lead members of the public to identify either the accused or the alleged victim once an individual has been charged under the Punishment of Incest Act, 1908. Two further examples are to be found in s. 7 of the Criminal Law (Rape) Act, 1981, as amended by s. 17 (2) of the Criminal Law (Rape) (Amendment) Act, 1990, which precludes members of the press from publishing material likely to identify a complainant in the trial of a sexual assault offence, and s. 8 of the same Act which interdicts the publication of material likely to identify a person being tried for a rape offence.
Aside from such statutory provisions, however, it has been recognised for a long time that it may be necessary to postpone publication of evidence on occasion. Again, it is necessary to emphasise that postponement rather than total prohibition will most always be but poor consolation for the press; the whole point of the speed with which news is reported nowadays is that it will often only be relevant for the public if it is reported immediately.However, in the case of a “trial within a trial”, this will most commonly occur when there is a question whether a confession should be admitted in evidence, as well as other areas where it will be necessary to bring down the curtain, temporarily, in relation to the admissibility of evidence the court is justified in making an order postponing the publication of such evidence until after the trial or, sooner, if the evidence is deemed admissible at trial. Further, where persons are jointly indicted but where separate trials are ordered, on occasion, it may be prudent to prohibit evidence that would be incriminatory of a second accused awaiting trial. I would, however, give a wide discretion to the trial judge as to how to deal with this and, indeed, the facts of the foundation case on this matter: R. v. Clement (1821) 4 B & ALD 218, would not nowadays be sufficient to justify such an order. (That was a case where it was felt that witnesses in subsequent trials might “trim”their evidence to suit their particular ends once they had read other evidence in the newspapers; the prohibition on publication had nothing to do with any possible prejudicial effect on a subsequent jury).
It will be clear, however, that the order made by the third respondent here went much further than has ever been allowed in the past (cf. R. v. Horsham J.J., Ex p. Farquharson [1982] Q.B. 762). If valid here, it is an order that could be made, in theory at least, in every type of case: criminal and civil. It must be that the exercise of such a jurisdiction is inconsistent with the Constitution.
In the first instance, the members of the public are entitled to know what goes on in courts of law. Take this very case. It must have been a matter of extreme bewilderment to the public to learn that they could not hear contemporaneously about the prosecution that was brought arising on this massive seizure of drugs; it was said in this Court, in passing, that this may have been the biggest seizure of cocaine anywhere in Europe to date. Yet, the public was destined never to learn anything about the course of the trial of those who pleaded not guilty because the media declined, for whatever reason, to publish any details of the evidence afterwards.
Next, there is the right of the accused to have their cases reported in the press; it has been known in the past for witnesses to come forward to offer evidence favourable to an accused, who might not otherwise have done so, once they have read or heard about the case on radio or television. Especially is this true ever since the enactment of s. 17 of the Criminal Procedure Act, 1967, which prohibits the publication of the proceedings at the preliminary examination of indictable offences in the District Court. Or, an accused about whom adverse rumours had circulated in advance of a hearing might properly wish it to be shown how he came to be vindicated at trial.
Finally, there is the freedom of the press argument. I would hold that freedom of the press is guaranteed under Article 40.6.1 and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions. Carroll J. so held in Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597. In that case the plaintiff had sought to prevent the publication of the memoirs of a deceased member of the British Secret Services. The learned judge said that the defendants had a constitutional right under Article 40.6.1 to publish information which does not involve any breach of copyright provided that the public interest in this jurisdiction is not affected by the publication and there was not a breach of confidentiality in a private or commercial setting. I would endorse and apply her reading of the Constitution to the circumstances of this case.
While freedom of the press is constitutionally guaranteed, there is a sense in which freedom of the press might be categorised as such freedom as remains after the Constitution itself and the law have had their say: the publication of blasphemous, seditious or indecent matter is prohibited by the Constitution itself and is to be punishable by law and, in addition, there are the laws of contempt and defamation. As against that, the legislature has recognised in s. 18 of the Defamation Act, 1961, that a fair and accurate report published in any newspaper or broadcast of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged.
So the press has the right to report and, indeed, comment on proceedings in courts of law. As was observed by Atkin L.J. in the course of his speech in Ambard v. Attorney General for Trinidad and Tobago [1936] A.C. 322 at p. 335:-
“. . . no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The passage was adopted by this Court in In re Hibernia National Review [1976] I.R. 388.
Indeed, as long ago as 1901, O’Brien L.C.J. spoke to similar effect when he said:-
“In his private personal character a Judge receives no more protection from the law than any other member of the community at large; and, even in his judicial character, he should always welcome fair, decent, candid, and I would add, vigorous criticism of his judicial conduct; . . .” R. v. McHugh [1901] 2 I.R. 569, at p.579
And returning to recent times, in Cullen v. ToibÃn [1984] I.L.R.M. 577, O’Higgins C.J. said at p. 582:-
“. . . the freedom of the press and of communication which is guaranteed by the Constitution . . . cannot be lightly curtailed.”
The press are entitled to report, and the public to know, that the administration of justice is being conducted fairly and properly. This is not to satisfy any idle curiosity of the public. The public have both a right and a responsibility to be kept informed of what happens in our courts. Since the proper administration of justice is of concern to everyone in the State, the press has a solemn duty to assure the public by fair, truthful and contemporaneous reporting of court proceedings whether or not justice is being administered in such a manner as to command the respect and the informed support of the public. As it was put by Fitzgerald J., in an Irish case of the last century, one of the many securities for the due administration of justice is “the great security of publicity”: R. v. Gray (1865) 10 Cox C.C. 184 at p. 193.
In my judgment the blanket ban imposed by the trial judge went too far. It was not justified. It was an order to prevent what was only a possibility of harm though made, I have no doubt, from the best of motives. The risk that there will be some distortion in the reporting of cases from time to time must be run. The administration of justice must be neither hidden nor silenced to eliminate such a possibility. The light must always be allowed shine on the administration of justice; that is the best guarantee for the survival of the fundamental freedoms of the people of any country.
I would allow the appeal.
Denham J.
I have had the opportunity of reading the judgments of the Chief Justice and O’Flaherty J. in which the facts and constitutional provisions relevant to the appeal have been set out fully and it is unnecessary for me to repeat them. The issues in the case are:
(a) whether the trial before the learned Circuit Court Judge was held in public within the meaning of Article 34.1 of the Constitution, and
(b) whether in the circumstances of the case it was open to the learned Circuit Court Judge to prohibit the contemporaneous reporting of the trial?
(a) In Public
The learned Circuit Court Judge ordered that the hearing be held with the doors of the court open, seats available, yet with a ban on contemporaneous media reporting, except for:-
(i) the fact that the trial was proceeding in open court,
(ii) the names and addresses of the accused parties,
(iii) the nature of the crimes alleged in the indictment,
(iv) where the trial was taking place,
(v) but not referring to the fact that the accused were in custody, and
(vi) the fact that the captain of the vessel had pleaded guilty to the charge.
The precise words of the learned Circuit Court Judge were:-
” . . . the doors of the court are open, seats are available, . . .”
There is a certain resonance with part of the judgment of Walsh J. in In re R. Ltd. [1989] I.R. 126 at p.134, where he stated:-
“The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done.”
However, those words should not be given a literal meaning so as to restrict the interpretation of “in public” to exclude the press or press reporting. The whole timbre of Walsh J.’s judgment is that justice be administered in public on behalf of all the inhabitants of the State. In analysing the principles which subsequently became part of the Constitution in Article 34 he pointed out that it was only when justice would be defeated by the presence of the public or public knowledge that a case would be heard otherwise than in public. He endorsed case law determining that publicity is inseparable from the administration of justice. Further, he was not considering a conflict of constitutional rights such as arises in this case. Consequently, his judgment does not support the decision of the learned Circuit Court Judge.
It is a fundamental right in a democratic State for the people to have access to the courts to hear and see justice being done, save in a few limited exceptions. This right helps sustain democracy. Ireland is a democratic State (Article 5), all powers of government derive from the people (Article 6) and are exercisable only by or on the authority of the organs of state established by the Constitution (Article 7). The judicial branch of government, judicial power, is administered in courts established by law by judges appointed in the matter provided for in the Constitution (Article 34). The right to public court hearings is stated in Article 34.1 as:-
“Justice . . .
. . . save in such special and limited cases as may be prescribed by law, shall be administered in public.”
The term”in public” is not defined in the Constitution. “Public” is defined in the Concise Oxford Dictionary, 8th Ed.:-
“. . . of or concerning the people as a whole; . . . open to or shared by all the people; . . . done or existing openly . . .”
Considering the roots of the word “public”, its connection to the people, together with its current meaning, these factors clearly indicate that a hearing “in public”signifies a hearing before the people. We are not living in ancient times or in a city state. We live in a modern democracy in the age of information technology. It is entirely impractical for all people to attend all courts. Nor is that required. What is required is that information of the hearings in court are in the public domain. In a modern democracy this information is brought into the public domain by many routes, but in reality most people learn of matters before the courts from the press. Thus any curtailment of the press must be viewed as a curtailment of the access of the people to the administration of justice and should be analysed accordingly.
(b) Right to prohibit contemporaneous reporting
There is no general discretion in or statutes pursuant to Article 34.1 of the Constitution which empowered the learned Circuit Court Judge to order the hearing otherwise than in public. Applying the decisions of Walsh J. in In re R. Ltd. [1989] I.R. 126 at p.135 and Finlay C.J. in Irish Press Plc v. Ingersoll Publications Ltd. [1993] I.L.R.M. 747 at p. 751, there is no law, that is statute, pursuant to Article 34.1, permitting the learned Circuit Court Judge to limit access to the court.
However, that does not dispose of the matter. While there is no discretion in Article 34.1 to order a trial otherwise than in public Article 34.1 does not exist in a vacuum. There are competing constitutional rights, rights relating to other persons and in addition the court has duties under the Constitution. The court has a duty and jurisdiction to protect constitutional rights and to make such orders as are necessary to that end. There were several rights for consideration at the trial before the Circuit Court. The accused had a right to trial in due course of law (Article 38.1) and to a trial with fair procedures (Article 40.3). The trial judge had a duty to uphold the Constitution and the law and to defend the rights of the accused. Balanced against that was the community’s right to access to the court, to information of the hearing, to the administration of justice in public (Article 34.1). That right is clearly circumscribed by the terms of Article 34.1. However, also in the balance was the freedom of expression of the community, a freedom of expression central to democratic government, to enable democracy to function. There was also the freedom of expression of the press. Thus consideration should have been given to Article 40.6.1 (i), which may include the publication of information: Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597. The right to communicate (Article 40.3) was also a part of the panoply of rights in the bundle of rights for consideration.
None of the rights in consideration are absolute. Where there are competing rights the court should give a mutually harmonious application. If that is not possible the hierarchy of rights should be considered both as between the conflicting rights and the general welfare of society: People v. Shaw [1982] I.R. 1 at p.56.
The accuseds’ right to a fair trial is superior to the other rights in the balance: D. v. Director of Public Prosecutions [1994] 2 I.R. 465; Z. v. Director of Public Prosecutions [1994] 2 I.R. 476. However, categorising the rights and placing them in the appropriate hierarchy does not dispose of this matter.
Test
The test to be applied is whether there is a real risk that the accused would not receive a fair trial if the trial was held in public.
Further, the test requires a second step. If it were determined on evidence that there was a real risk of a trial being unfair if it were held in public then the trial judge should consider whether the real risk can be
avoided by appropriate rulings and directions. This two-part process was not applied or applied appropriately.
In addition, when the issue is a ban such as in this case the test should be applied after hearing evidence and submissions from the parties and any relevant representatives. This was not done, a further breach of constitutional procedures. The evidence in this case on which the learned trial judge decided to ban contemporaneous reporting falls far short of evidence establishing a real risk.
Error
While the learned Circuit Court Judge had the jurisdiction to make such an order in principle, he erred in law, in the test and its application, and in the process. He fell into unconstitutionality and breached the requirements of natural justice. He exceeded his jurisdiction and thus rendered the decision liable for judicial review: State (Holland) v. Kennedy [1977] I.R. 193 at p. 201.
Conclusion
The fundamental constitutional principle that justice be administered in public means that the jurisdiction to make an order limiting contemporaneous press reporting of a trial arises only in exceptional circumstances where after applying the appropriate test and process the trial judge determines that there is a real and unavoidable risk of an unfair trial. If there is a real and unavoidable risk that the accuseds would not receive a fair trial then there would be no question of the accuseds’ right to a fair trial being balanced detrimentally against the other rights in consideration.
On the two matters in issue I am satisfied that (a) the trial before the learned Circuit Court Judge was not held in public within the meaning of Article 34.1, and (b) while it is open to the learned Circuit Court Judge in principle to prohibit contemporaneous reporting, such an order would be the rare exception, require a heavy onus of proof and in this case the learned Circuit Court Judge did not apply the correct law, test, or process. In light of this error judicial review in the form of a declaration lies against the decision and I would allow the appeal.
Barrington J.
This case raises interesting points on the relationship between Article 34, Article 38 and Article 40.6 of the Constitution.
One of the applicants’ principal submissions rested on Article 34.
Article 34.1 of the Constitution reads as follows:-
“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.”
It is true that the order made by the learned trial judge in the present case was not an order directing that the trial be held in camera. It was merely an order prohibiting contemporaneous reporting of the trial. The doors of the court remained open and any member of the public (including representatives of the press and the radio) was free to enter and to watch the proceedings. It is a fine point as to whether, under these circumstances, the proceedings were, or were not, being conducted in public.
As Keane J. points out in his judgment, which I have had the pleasure of reading in advance, nowadays very few citizens have the time to attend court. The press is in effect the eyes and the ears of the public. It is an important protection to accused persons that their case be heard in public. It is also important to the citizens in general that anything eccentric, unusual, or apparently unfair which happens in the courts should be drawn to their attention. It is also important to all engaged in the administration of justice that justice should not only be done but should be seen to be done.
A ban on contemporaneous reporting of a case may carry with it the danger that the case may never be reported at all. Moreover the privilege conferred on newspapers by s. 18 of the Defamation Act, 1961 applies only to fair and accurate reports of legal proceedings published”contemporaneously” with such proceedings.
I would have no difficulty therefore in holding that the order made by the learned trial judge so emasculated the right to a hearing in public as to constitute a denial of that right unless it could be justified by some other provision of Article 34 or by some other provision of the Constitution.
As counsel for the third and fourth applicants has pointed out the exception “save in such special and limited cases as may be prescribed by law” contained in Article 34.1 refers only to laws enacted since the coming into operation of the Constitution. There is no act of the Oireachtas passed since the coming into operation of the Constitution justifying the kind of order made by the learned trial judge and therefore this order must be held to be void unless it can be justified under some other provision of the Constitution.
Article 38
Article 38.1 provides that:-
“No person shall be tried on any criminal charge save in due course of law.”
Article 34 may have given to the Oireachtas power to provide that justice is to be administered otherwise than in public in such “special and limited cases as may be prescribed by law”. Article 38 however, which is concerned with the actual trial of offences, is largely the concern of the judiciary who have the duty of seeing that trials are conducted in due course of law.
Article 38.5 provides that subject to the exceptions contained in the said Article, no person is to be tried on any criminal charge without a jury.
A fundamental duty of a trial judge is to ensure that the trial before him is conducted in due course of law. Different generations of lawyers may have different insights into what is required by “due course” or “due process” of law. But the general incidents of a jury trial in a criminal case were well known to the framers of the Constitution. Had they intended to change these incidents one would have expected them to say so.
Among these incidents is the duty of a trial judge in a criminal case to ensure that prejudicial matter of no probative value is not admitted in evidence before the jury. Thus if a question is raised as to whether an alleged confession was or was not made by the accused voluntarily the judge will investigate the voluntariness of the confession in the absence of the jury before deciding whether or not to admit it in evidence. This is because a jury of laymen could hardly be expected to exclude from their minds damaging evidence such as an alleged confession of guilt even though the alleged confession might be of no probative value in law. There would be little point however in the judge conducting his inquiry in the absence of the jury if the press were free to report everything which happened in the absence of the jury and if the members of the jury could read all about it in their newspapers.
The common sense of the matter is so obvious that the press have traditionally co-operated with the courts in not reporting evidence heard in the absence of the jury in a criminal trial. However as Denham J. said in D. v. Director of Public Prosecutions [1994] 2 I.R. 465 at p. 474:-
“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.”
If therefore the press were to put in jeopardy the right of an accused person to a fair trial I have no doubt that the courts would have all powers necessary to defend and vindicate the constitutional rights of the accused. (See the State (Quinn) v. Ryan [1965] I.R. 70). I have no doubt therefore that a trial judge would, in a proper case have a right to prohibit the contemporaneous reporting of part, or even in an extreme case, of all of the evidence in a criminal trial.
Article 40.6
Article 5 of the Constitution states that Ireland is, inter alia, a “democratic State”. In moving from the discussion of Article 34 and Article 38 of the Constitution to Article 40.6 we are moving from an area primarily concerned with the practical implications of the rule of law to one primarily concerned with the public activities of the citizen in a democratic society. The importance of this case derives from the fact that it lies at the interface between these two principles of constitutional government.
Article 40.6.1 (i) provides as follows:-
“6.1 The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
The right to freedom of expression is one of the personal rights of the citizen which the State is bound to defend and vindicate, as far as practicable, in accordance with the provisions of Article 40.3 of the Constitution. It is of course surrounded by many reservations and safeguards. But it is a positive right which the State is pledged to defend and the function of the court is to preserve the balance between the guarantee and the reservations in such a way as to give to the right guaranteed life and reality. The position is totally different from the position in a common law country where the citizen is entitled to say anything he wishes as long as it is not illegal.
The Irish Constitution was drafted before the Second World War and the European Convention on Human Rights after it. Yet if one compares Article 40.6.1 (i) of the Irish Constitution with art. 10 of the European Convention on Human Rights (which deals with freedom of expression) one finds significant similarities as well as important differences. Article 10 reads as follows:-
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
It appears to me also that it is important to look at the context in which the right of the citizens to express freely their convictions and opinions is placed in the Constitution. Article 40.6.1 deals with three rights, the right of the citizens to express freely their convictions and opinions, the right of the citizens to assemble peaceably and without arms and the right of the citizens to form associations and unions. All of these relate to the public activities of the citizens and to the practical workings of a democratic society. They are part of the dynamics of political change. They are at once both vitally important to the success of a democracy and potentially a source of political instability. That is why the Constitution and the European Convention both assert and circumscribe them. That is also why it is so important to get the balance right in interpreting them.
Article 40.6.1 (i) is unique in conferring liberties and rights upon the “organs of public opinion”.”Organs” are not capable of having rights so this reference must be taken to mean a reference to those persons whether natural or artificial (such as the applicants in the present action) who control the organs of public opinion. These rights must include the right to report the news as well as the right to comment on it. A constitutional right which protected the right to comment on the news but not the right to report it would appear to me to be a nonsense. It therefore appears to me that the right of the citizens “to express freely their convictions and opinions”guaranteed by Article 40 of the Constitution is a right to communicate facts as well as a right to comment on them. It appears to me also that when the European Convention on Human Rights states that the right to freedom of expression is to include “freedom . . . to receive and impart information” it is merely making explicit something which is already implicit in Article 40.6.1 of our Constitution.
This interpretation appears consistent with the judgment of O’Higgins C.J. in Cullen v. ToibÃn [1984] I.L.R.M. 577, when, lifting an injunction on the publication of an article by a witness at a trial which purported to contain a description of how the accused had carried out the murder of which he had been convicted, while the accused’s appeal was still pending before the Court of Criminal Appeal, he said at p. 582:-
“There is . . . the matter of the freedom of the press . . . guaranteed by the Constitution and which cannot be lightly curtailed.”
Likewise it is consistent with the decision of this Court in Heaney v. Ireland [1997] 1 I.L.R.M. 117, to the effect that the right to silence is a correlative right to the right to freedom of expression. Likewise it is consistent with the judgment of Carroll J. in Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597.
The judgment of Costello J. in Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373, is cited as authority for the contrary proposition that Article 40.6 guarantees only the right to express ones convictions and opinions and not the right to communicate facts. But as Costello J. himself recognised, Article 40.6 had nothing to do with the question at issue in that case. That case involved a commercial courier which attempted to set up in opposition to the postal monopoly formerly operated by the Minister for Posts and Telegraphs. The case was really an economic and commercial dispute which turned not on freedom of expression but on the means of private communication.
Costello J. accepted that a “a right to communicate” was one of the unspecified rights of the citizen protected by Article 40.3 of the Constitution, and he reiterated this view in Kearney v. Minister for Justice [1986] I.R. 116 at p. 118. I would be prepared to accept that such a right exists as one of the unspecified rights of the citizen but, if such a right exists, it must include not only the right to communicate facts but also the right to communicate convictions opinions and even feelings. The question then arises of what is the relationship between this right and the right of freedom of expression guaranteed by Article 40.6 of the Constitution.
In some respects the two rights may overlap and may be complimentary. But the right of freedom of expression is primarily concerned with the public statements of the citizen. When the Constitution guarantees the citizen liberty for the exercise of this right it is guaranteeing to him that he will not be punished by the criminal law or placed under any unconstitutional restriction for freely stating in public his convictions and opinions, be they right or wrong. A fortiori it guarantees him, but again subject to the same constitutional restrictions, the right to state the facts on which these convictions and opinions are based. The Constitution guarantees to the organs of public opinion liberty for the criticism of government policy. But it would be absurd to suggest that the press enjoys constitutional protection under Article 40.6.1 (i) when criticising government policy but not when reporting the facts on which its criticism is based.
The sister rights guaranteed by Article 40.6.1 are the right of the citizens “to assemble peaceably and without arms” and the right of the citizens”to form associations and unions” but it would be absurd to suggest that the right of the citizens “to assemble peaceably and without arms” guaranteed the right of the citizens to assemble but not their right actually to hold a meeting or that the right of the citizens “to form associations and unions” guaranteed the right of the citizens to”form” associations but not their right to manage or run them for any particular purpose. Likewise it seems to me absurd to suggest that the constitutional right of the citizens to express freely their convictions and opinions does not also protect, subject to constitutional exceptions, their right to state facts. In this context it is important to remember that we are construing, not a revenue statute, but a constitution.
The freedom of expression guaranteed by Article 40.6.1 of the Constitution includes criticism of government policy. A fortiori it includes criticism of other aspects of State activity including the working of the courts. Apart from particular statutes designed to protect privacy or the weaker members of the community there are only two kinds of restrictions on publicity or criticism concerning the courts. Both exist to protect the administration of justice. The first kind of restriction is on publicity which tends to deny to an accused person a fair trial and the other is on the kind of irresponsible and malicious criticism which damages the administration of justice by bringing the courts into contempt.
Conclusion
There is no doubt that the learned trial judge in the present case was concerned about the fact that the accused were all foreigners and that, in the event of the trial being aborted because of irresponsible publicity, the accused would probably be denied bail and remanded in custody while awaiting a new trial.
The learned trial judge put the matter as follows in his ex tempore judgment delivered at Cork Circuit Criminal Court on the 6th February, 1997:-
“I consider the risk to the accused people and the risk to the trial having regard to what happened and having regard to what was happening. I could see it was going to happen again, and that this trial will be aborted and that they will be back in custody for a considerable period.
Why did I take this view? I had reliable information that it started on a sinister footing on Tuesday last. It was reported on radio that all that day a jury was to be sworn to try this case. That of course was inaccurate. No jury panel was summoned for that day. It was also reported that some of the jury panel having heard this dropped what they were doing and ran for this Courthouse. That was not a very accurate report.
Today we have another report in the Evening Echo presented to me at 2.30 p.m., it now being 5 o’clock, and this application having started at 4.30 p.m., saying that the Echo was in court today fighting an order barring the newspaper from reporting the case. The Irish Times also made a report on the matter today.”
The learned trial judge’s concern that there should not be a mistrial does him credit. But at the same time he appears to have been unduly apprehensive. An inaccurate report on local radio about the jury being sworn coupled with the statement in a local newspaper that it was in court fighting a case when the case had merely been listed for hearing on that particular day hardly constitutes a major threat to the administration of justice. The learned trial judge clearly took the view that the most important issue was the right of the accused to a fair trial. But he does not appear to have assessed correctly the requirement of Article 34 of the Constitution that justice “shall be administered in public”. He does not appear to have at all considered the fact that the applicants had a constitutional right to report the court proceedings. For that reason he made no attempt to see if the applicants’ constitutional right to report the proceedings could be reconciled with the accuseds’ right to a fair trial.
Apart from the foregoing it is not clear to what extent if any the individual applicants were responsible for the mistakes of which the learned trial judge complained. In this respect the decision of the learned trial judge savours of Brutus’ famous fallacy concerning Julius Caesar:-
“Therefore, think him as a serpent’s egg
Which, hatch’d, would, as his kind, grow mischievous
And kill him in the shell”.
(Julius Caesar II, I, 32).
I would allow the appeal and reverse the order of the learned High Court Judge
Keane J.
Article 34.1 of the Constitution provides:-
“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.”
It was submitted in the High Court, and again in this Court, that a trial to which the public were admitted, but the detailed contemporaneous reporting of which in the media was prohibited, was held “in public” within the meaning of this Article. That submission was rejected by the High Court Judge: I have no doubt whatever that he was correct in so holding. It was a logical consequence of that submission, which counsel for the respondents did not shrink from advancing, that Article 34.1 could not be invoked to invalidate the enactment by the Oireachtas of a law prohibiting all contemporaneous reporting by the media, print or electronic, of any trial, civil or criminal. Protection for what was accepted to be their right to report such proceedings contemporaneously was to be found, it was urged, in those provisions of the Constitution which, expressly or by implication, guarantee freedom of speech.
I am satisfied that such a construction of Article 34.1 could not possibly be upheld. It is immaterial whether one takes the decisive factor in this context to be the presumed intention of the framers of the Constitution
in 1937 or the manner in which it should most appropriately be construed in today’s conditions. I do not believe that at any stage in the history of this State over the past 75 years a trial to which the public were admitted, but which the media were prohibited from reporting at the time it was being held, would have been regarded as a trial held “in public” within the ordinary meaning of those words.
The reasons for this are obvious but will bear restating. As Walsh J. pointed out in In re R. Ltd. [1989] I.R. 126, the actual presence of the public is not necessary, but the doors of the courts must be open to satisfy the requirement that justice be administered in public. However, the very fact that physical and other constraints prevent more than a minuscule section of the entire population from being present in court while justice is being administered makes it all the more imperative that the media should have the widest possible freedom to report what happens in court which is consistent with the proper administration of justice. It is manifest that the right of the public to know what is happening in our courts, a right which is clearly recognised and guaranteed by Article 34, would be eroded almost to vanishing point if the public had to depend on the account that might be transmitted to them by such people as happened to gain admission to the court room for the trial in question. In modern conditions, the media are the eyes and ears of the public and the ordinary citizen is almost entirely dependent on them for his knowledge of what goes on in court.
Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. Such a society could not tolerate the huge void that would be left if the public had to rely on what might be seen or heard by casual observers, rather than on a detailed daily commentary by press, radio and television. The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy.
Article 34 envisages that in what it describes as “special and limited cases” which must be prescribed by law, justice may be administered otherwise than in public. Specific instances in which that power has been availed of are set out by O’Flaherty J. in his judgment. It could never be exercised so as to deprive the media completely of the power to publish contemporaneous reports of court proceedings, since that would render the guarantee of the public administration of justice virtually meaningless.
Since, as it seems to me, the freedom of the press to report on court proceedings is clearly guaranteed, subject to those limited qualifications, by Article 34.1 it is unnecessary to reach any conclusion as to whether it
also derives support from Article 40.6.1 which guarantees liberty for the exercise of
“The right of the citizens to express freely their convictions and opinions.”
It was held by Costello J., as he then was, in Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373, that the protection afforded by that Article is confined to the expression of convictions and opinions and that the citizens’ right to communicate is one of the personal unspecified rights of the citizen protected by Article 40.3.1. I would reserve for a case in which it arose the question as to whether that view of the law is to be preferred to that of Carroll J. in Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1986] I.R. 597.
The right of the public to be informed as to proceedings in court is not, however, an absolute right: its exercise may, on occasions, have to yield to other constitutional requirements, specifically Article 38.1, which provides that:-
“No person shall be tried on any criminal charge save in due course of law.”
The limitations imposed by this Article on the contemporaneous reporting of court proceedings are not, in general prescribed by any Act of the Oireachtas. Article 50 of the Constitution, which preserved the existing body of statute and common law in existence at the date of the enactment of the Constitution to the extent that it was consistent with its provisions, carried forward into our law and machinery of contempt of court, which in turn had been carried over by the Constitution of the Irish Free State. That law has always recognised the inherent jurisdiction of the courts established under the Constitution to take such steps as are necessary to ensure that the proper administration of justice is not compromised by the manner in which court proceedings are reported. This will on occasions involve the postponement of the publication of reports of court proceedings, rather than their total suppression. The media have properly recognised that, where a “trial within a trial” takes place in the absence of a jury to determine whether particular evidence is admissible, reporting of the proceedings must, in fairness to the accused, be deferred until the entire trial has concluded. A similar restraint may be required in the case of persons jointly indicted but separately tried. The jurisdiction of the courts to ensure that in instances such as these the integrity of the trial process is preserved by means of the contempt of court procedure is not in doubt: see Keegan v. de Burca [1973] I.R. 223; The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412.
In the present case, however, the learned Circuit Court Judge prohibited the detailed contemporaneous reporting of the trial solely because of the possibility that the reporting might be inaccurate and, it would seem, because he feared that this could lead to the discharge of the jury. I have no doubt that those misgivings, although doubtless seriously entertained by the learned Circuit Court Judge, could not possibly justify so extreme a step as the banning of detailed, and, it must be assumed, accurate, contemporaneous reporting of the trial. For the reasons I have given, this was not a trial held”in public”, although no part of it came within the cases envisaged by Article 34.1, and prescribed by legislation, in which a trial otherwise than in public can be held. Nor was the invocation of so drastic a measure justified by any established and overriding necessity to preserve the integrity of the trial process so as to ensure that it was held in due course of law in accordance with Article 38.
Murphy v Independent Radio and Television Commission
[1999] 1 IR 12 Mr. Justice Barrington.
This is an appeal from the Judgment and Order of Mr. Justice Geoghegandelivered and made herein on the 25th April, 1997.
The Applicant/Appellant is a Pastor attached to the Irish Faith Centre,a bible based Christian Ministry. The Centre is not an incorporated bodyand the Applicant makes the application on his own behalf and on itsbehalf.
In these proceedings the Applicant challenges a decision of theIndependent Radio and Television Commission made in March 1995 to refuseto permit an independent radio station, 98FM, to broadcast the followingadvertisement which had been submitted by the Centre fortransmission:-
“What think ye of Christ? Would you, like Peter, only say thathe is the son of the living God? Have you ever exposed yourself to thehistorical facts about Christ? The Irish Faith Centre are presenting forEaster week an hour long video by Dr. Jean Scott PHD on the evidence ofthe resurrection from Monday 10th – Saturday 15th April every night at8.30 and Easter Sunday at 11.30am and also live by satellite at7.30pm”.
The Broadcasting Station, 98FM, was prepared to broadcast theadvertisement. The Independent Radio and Television Commission howeverfelt itself bound by the provisions of Section 10 (3) of the Radio andTelevision Act, 1988which provides as follows:-
“No advertisement shall be broadcast which is directed towardsany religious or political end or which has any relation to anindustrial dispute”.
and banned the broadcast.
In the Court below the Applicant made a two-pronged attack upon thedecision of the Commission. He submitted first that the decision of theCommission that the advertisement was “directed towards anyreligious…..end” was mistaken in law. Alternatively hesubmitted that if the Commission had correctly construed Section 10s.s.3 as prohibiting the publication of an advertisement such as that ofthe Applicant then the sub-section was unconstitutional.
The submission that the Commission had misunderstood the nature of theadvertisement or misconstrued the terms of the Section was neveradvanced with great force and was abandoned in the course of the hearingin this Court. The debate therefore turned upon the constitutionality ofthe sub-section. The Applicant submitted that the sub-section, bytotally banning advertisements directed towards any religious endviolated guarantees of freedom of religioncontained in Article 44 S.2 s.s.1 and 3 of the Constitution. He alsosubmitted that they violated guarantees of free speech and freeexpression contained in Article 40 S.6 of the Constitution andguarantees of communication implied in Article 40 S.3 of theConstitution. Moreover he submitted that Section 10 s.s.3, constitutingas it did a total ban on the broadcasting of any advertisement “directed towards any religious end”, swept far toowidely and violated the principle of proportionality.
RELEVANT CONSTITUTIONAL PROVISIONS.
The Constitutional Provisions relied upon by the Applicant read asfollows:-
Article 44.
2. 1. “Freedom of conscience and the free profession andpractice of religion are, subject to public order and morality,guaranteed to every citizen.
3. “The State shall not impose any disabilities or makeany discrimination on the ground of religious profession, belief orstatus”.
Article 40
3. 1. “The State guarantees in its laws to respect, and, asfar as practicable, by its laws to defend and vindicate the personalrights of the citizen.
6. 1. “The State guarantees liberty for the exercise of thefollowing rights, subject to public order and morality:-
i i. The right of the citizens to express freely theirconvictions and opinions.
The Education of public opinion being, however, a matter of suchgrave import to the common good, the State shall endeavour to ensurethat organs of public opinion, such as the radio, the press, the cinema,while preserving their rightful liberty of expression, includingcriticism of Government policy, shall not be used to undermine publicorder or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecentmatter is an offence which shall be punishable in accordance withlaw”.
HIGH COURT JUDGMENT.
The learned High Court Judge rejected the submission that theprohibition contained in S.10 s.s.3 of the 1988 Act was an attack on thefreedom of conscience or the free profession or practice of religionguaranteed by Article 44 S.2 s.s.1 of the Constitution. The prohibitionon this particular advertisement, he held, was not an attack on freedomof conscience or the free practice of religion. Indeed, he held that theadvertisement itself “might be an intrusion on the quietpossession of religious beliefs”. Nor, he held, could theadvertisement be regarded as a discrimination made on the grounds ofreligious profession belief or status contrary to Article 44 (2) (3) ofthe Constitution. This latter provision, he held, prohibited the makingof distinctions on the grounds of religious profession belief or status(see Quinns Supermarket v. Attorney General 1972 Irish Reports page 1)but the ban on this type of advertisement, did not distinguish betweenpersons on the grounds of religious profession belief or status. Thisban applied, no matter what the religion, and therefore there could beno question of religious discrimination involved.
Article 40.
The learned trial Judge next turned to the submission based upon thealleged violation of an implied right to communicate based on Article 40(3) (1) of theConstitution and the right to freedom of expression guaranteed byArticle 40 (6) (1) of the Constitution. The learned High Court Judge wasat some loss to understand the conclusion which some people have drawnfrom the decision of Costello P. in Attorney General v. PaperlinkLimited (1984) ILRM page 373 that the right to communicate informationderives from Article 40 (3) (1) but that the right to communicateopinions derives from Article 40 (6) (1) of the Constitution.Nevertheless he held that the present case raised the question of thegeneral right to communicate and this, he concluded, derived fromArticle 40 S.3 of the Constitution. In the view he took of the caseArticle 40 (6) (1) of the Constitution was not relevant.
He held that Article 40 (6) (1) was not relevant for two reasons. First,he held, that the proposed advertisement was not primarily concernedwith matters of opinion but had, as its principal purpose, thecommunication of information. Secondly he held that Article 40 (6) (1)did not seem to have any application to the right of a private citizento express private opinions with a view to influencing some other personor persons.
At the same time the learned trial Judge expressed some puzzlement as towhy such diverse rights as the right to freedom of expression, the rightto free assembly and the right to join associations and unions should bereferred tocollectively in one paragraph at Article 40 (6) (1) of the Constitution.Superficially the rights would seem to refer to quite different mattersbut nevertheless the learned High Court Judge, took the view, that theframers of the Constitution had deliberately included them in the onesub-section for a reason. He drew the conclusion that the reason wasthat they were concerned with the influencing of public opinion. Anadvertisement, and in particular a religious advertisement, was howeverdirected to the individual listener and for that reason he drew theconclusion that Article 40 (6) (1) had nothing to do with the matter atissue in this case.
The case therefore turned upon the provisions of Article 40 S.3 s.s.1.The learned trial Judge accepted that the rights guaranteed by Article40 S.3 were not absolute but might be regulated in the interests of thecommon good. He then drew an analogy with Article 10 of the EuropeanConvention on Human Rights (which deals with freedom of expression) andasked himself if the restriction on the advertisement in question wouldbe regarded as a reasonable limitation on freedom of expression by theEuropean Court of Human Rights.
“What would be considered reasonable limitations under thatArticle should equally……..” he said “beconsidered reasonable limitations under Article 40 (3) of theConstitution”.
Having considered the cases on Article 10 of the European Convention onHuman Rights he reached the conclusion that for a restriction to surviveunder that Article it was not essential to show that the ban wasabsolutely necessary. He continued-
“It is sufficient, in my view, if there are good reasons inthe public interest for the ban. Irish people with religious beliefstend to belong to particular churches and, that being so, religiousadvertising coming from a different church can be offensive to manypeople and might be open to the interpretation of proselytising.Religion has been a divisive factor in Northern Ireland and this issomething which the Oireachtas may well have taken into account. AsMcCullough J. pointed out, 1 a person listening to commercialradio is for all practical purposes compelled to listen to theadvertisements. That being so, it is legitimate for any Oireachtas tohave regard to the type of advertisements which might be permitted. Theimpugned Section enjoys the presumption of constitutionality. It is notobvious to me that a restriction on religious advertising is not areasonable restriction in the interests of the common good on thisparticular form of exercise of the right to communicate”.
PROPORTIONALITY
The learned trial Judge then went on to deal with the submission thatthe prohibition in the present case was a blanket prohibition andtherefore offended the principle of proportionality. The learned trialJudge said that he could not accept this view. He added:-
“On the legislation as it stands there are very fewlimitations on the right to advertise and in that sense proportionalityhas already been taken into account”
He accordingly concluded that the sub-section was not invalid havingregard to the provisions of the Constitution.
SUBMISSIONS OF APPLICANT/APPELLANT
Article 44.
The Applicant/Appellant submitted that S.10 (3) of the 1988 Actconstituted a manifest discrimination or distinction on the grounds ofreligious profession and belief and thus violated Article 44 2.3 asinterpreted in Quinns Supermarket v. Attorney General (1972) IR page 1.Had the Plaintiff attempted to advertise any other form of meeting orvideo display he would have been perfectly free to do so. It was onlybecause the advertisement was interpreted as directed towards areligious end that its publication wasprohibited. This, the Plaintiff submitted, constituted a discriminationor distinction on the ground of the Applicant’s religious professionbelief or status.
The Plaintiff also claimed support for this interpretation from theJudgment of the US Supreme Court in Rosenberger v. University ofVirginia 132L. ED. 2d 700 (1995). In that case the United States SupremeCourt condemned a decision of the University of Virginia to refuse togrant funding to a Christian student newspaper while supporting similarsecular student publications. The case turned upon the establishmentclause in the American Constitution but the Plaintiff found support inthe following statement of principle of Rehnquist C.J. (at page 726 ofthe Report) where he stated:-
“The viewpoint discrimination inherent in the University’sregulations required public officials to scan and interpret studentpublications to discern their underlying philosophic assumptionsrespecting religious theory and belief. That course of action was adenial of the right of free speech and would risk fostering a pervasivebias of hostility to religion, which could undermine the very neutralitythe establishment clause requires”.
Article 40(6)(1) and Article 40(3)(1)
The Applicant submitted that the restriction clearly interfered with theApplicant’s unspecified constitutional right to communicate guaranteedbyArticle 40 (3) (1) and with his right of freedom of expressionguaranteed by Article 40 (6) (1). It was not just a question ofinterfering with the Plaintiff’s private right to express hisconvictions and opinions. It was also an interference with his publicright of freedom of expression.
Proportionality.
The Plaintiff further submitted that the ban imposed by S.10 (3) was notonly an interference with his rights guaranteed by Article 40 andArticle 44 of the Constitution but was a disproportionate interferencewith them. There was no necessity for the sub-section to sweep so widelyand it offended the principle of proportionality as expounded by theseCourts in numerous decisions including Cox v. Ireland (1992) 2 IR 503;in re Article 26 of the Constitution and the Matrimonial Homes Bill 1993(1994) I IR page 305 and Heaney v. Ireland (1994) 3 IR 593.
Moreover the Plaintiff submitted that, even if one accepted that someforms of religious advertising might be offensive to some citizens,there was no impracticality in having a more sophisticated controlwhereby, through some form of administrative action, religiousadvertisements likely to cause offence might be banned while innocuousreligious advertisements might be permitted.
DEFENDANTS SUBMISSIONS.
Article 44.
Mr. Rogers, Senior Counsel, on behalf of the Attorney General submittedthat the learned High Court Judge had been perfectly right to find thatS. 10 s.s.3 did not offend Article 44 of the Constitution. Thesub-section, he submitted, in no way impeded freedom of conscience orthe free profession or practice of religion and did not constitute adiscrimination on the grounds of religious profession belief orstatus.
Article 40 S.3 and Article 40(6)(1) of the Constitution.
Counsel for the Attorney General referred to the fact that the learnedtrial Judge had held that Article 40 (6) (1) had no relevance to thecase, firstly, because the advertisement in question was principallyconcerned with communication of information and the source of this rightis Article 40.3 and, secondly, because the advertisement was addressedto individual listeners and was not concerned with the influencing ofpublic opinion. While Counsel agreed that Article 40 (6) (1) was notrelevant to the Applicant/Appellant’s case he nonetheless submitted thatthe learned trial Judge’s interpretation of Article 40 (6) (1) as beingconfined to communications intended to influence public opinion wasoverly restrictive and that the learned trial Judge had erred in law inthis respect. Again Counsel submitted that the case was essentially tobedetermined on the basis of the right to communicate guaranteed byArticle 40 (3) (1). But accepting that there was a right to communicateguaranteed by Article 40 (3) (1) he submitted that the restrictioncontained in S.10 (3) was a legitimate restriction; that it wasreasonable for the Oireachtas to decide to impose that restriction; andthat the learned trial Judge was correct in holding that this was alegitimate exercise of legislative power on the part of the Oireachtas.At the same time Counsel demurred at the suggestion of the learned trialJudge that broadcasting should not be regarded as a special category ofcommunication.
He also rejected any suggestion that there might exist a constitutionalright to broadcast. He also submitted that the learned trial Judge hadnot adopted the correct approach to the problem presented by the presentcase. He had placed too much emphasis on the European Convention onHuman Rights. This error in approach was illustrated by his statementthat an Irish statutory provision which offended Article 10 of theEuropean Convention would be unconstitutional in most if not allcircumstances. While it was permissible to pay some regard to theprovisions of the European Convention, in the final analysis, theconstitutional validity of Acts of the Oireachtas had to be decided byreference to the provisions of the Irish Constitution.
Counsel further submitted that any right which the Applicant/Appellantmight have in the present case fell to be regulated in accordance withthe provisions of the common good.
Proportionality.
Counsel submitted that any right to which the Applicant/Plaintiff mighthave fell to be regulated by the Oireachtas in accordance with theprinciple of proportionality as expounded in Heaney v. Ireland (1994)31R page 593. The restriction contained in S.10 (3) of the 1988 Act was,he submitted, neither arbitrary unfair or irrational. It applied to allreligions irrespective of the religious profession belief or status ofthe person seeking to have the advertisement broadcast. There were veryrational grounds for the restriction. Persons wishing to advertise forreligious purposes might use many varied means of communication otherthan radio or television. There was no prohibition on broadcasting perse, merely on broadcasting advertisements of a particular kind.
CONCLUSION.
The Legislation.
The learned trial Judge complained that no evidence had been adduced toexplain to him the policy underlying the prohibition of religiousadvertisements contained in S.10 s.s.3 of the Act. But the Court thinksit is possible to gain some assistance on this point by examining thecontext in which the prohibition appears in the 1988 Act. S.9 of the Actimposes on every broadcasting contractor a duty to ensure that “all news broadcast by him is reported and presented in anobjective and impartial manner and without any expression of his ownviews”. It goes on to provide that the broadcast treatment ofcurrent affairs, including matters which are either of publiccontroversy or the subject of current public debate, is to be fair toall interests concerned and that the broadcast matter must be presentedin an objective and impartial manner and without any expression of thebroadcaster’s own views. It then goes on to provide that if it is notpracticable to provide the necessary balance in a single broadcast thebroadcaster may cover the missing issues in two or more relatedbroadcasts provided all broadcasts are transmitted within a reasonableperiod of each other. The broadcasting contractor must also ensure that “anything which may reasonably be regarded as offendingagainst good taste or decency, or as being likely to promote, or inciteto, crime or as tending to undermine the authority of the State, is notbroadcast by him”.
S.10 provides that programmes broadcast in a sound broadcasting servicemay include advertisements inserted therein. Section 10 s.s. 3 containsthe prohibition:-
“No advertisement shall be broadcast which is directed towardsany religious or political end or which has any relation to anindustrial dispute”.
It seems to the Court important to stress that there are three kinds ofadvertisements which are totally banned. These are:-
1. Advertisements directed towards any religious end,
2. Advertisements directed towards any political end,
3. Advertisements which have any relation to an industrialdispute.
One can best glean the policy of the Act by looking at the three kindsof prohibited advertisement collectively. One might get the falseimpression by singling out one kind of banned advertisement and ignoringthe others. All three kinds of banned advertisement relate to matterswhich have proved extremely divisive in Irish society in the past. TheOireachtas was entitled to take the view that the citizens would resenthaving advertisements touching on these topics broadcast into theirhomes and that such advertisements, if permitted, might lead to unrest.Moreover the Oireachtas may well havethought that in relation to matters of such sensitivity, rich men shouldnot be able to buy access to the airwaves to the detriment of theirpoorer rivals.
Article 44.
There is no question of any form of discrimination or distinction beingmade by s.s 3 of S.10 on the grounds of religious profession belief orstatus. The ban contained in s.s 3 is directed at material of aparticular class and not at people who profess a particular religion.All people in the same position are treated equally. The fact thatpeople who wish to advertise motor cars or tinned beans may be treateddifferently is not relevant.
It appears to the Court that the prohibition on advertising contained inS.10 (3) is broad enough to cover not only advertisements tending tofavour any or all religions but also advertisements tending to attackall or any religion. It cannot therefore be regarded as an attack on thecitizen’s right to practise his religion. It may however constitute alimitation on the manner in which the citizen can profess hisreligion.
It appears to the Court that it is not sufficient to say, in reply tothis argument, that religion is a private affair and that the citizen’sright to profess his religion is not affected by denying him access tothe airwaves. Religion isboth a private and a public affair and a citizen, convinced of the truthof his own religion, will naturally wish, not only to convert his fellowcitizens, but to influence the evolution of society.
Mr. Hogan, Senior Counsel for the Applicant, drew our attention to apassage which appears at page 164 of Dr. Kohn’s book on ” TheConstitution of the Irish Free State” where Dr. Kohn makesthis point, forcefully, in relation to the right of freedom ofconscience guaranteed by Article 8 of the 1922 Constitution. Hewrote:-
“Freedom of conscience, however, would be of merely passivesignificance if it were not supported by further guarantees for theunhampered expression of spiritual conviction in word and action. It isnot the abstract principle but its articulate words of profession andpractice which require to be protected against administrative orlegislative restriction. Freedom of profession connotes the right of thebeliever to state his creed in public and propagate it in speech andwriting, freedom of practice, his right to give practical expression informs of private and public worship. Both imply a right to activeintervention in the public sphere. Hence the imposition of restrictionthat such exercise must not conflict with “public order andmorality”.
Some people might say that Dr. Kohn’s reference to the right of thebeliever to “state his creed in public and to propagate it inspeech and writing” arises more appropriately under the rightof freedom of expression guaranteed by Article 40.6.1 than under Article44. But, in the present case, where the Plaintiff relies on bothArticles it is not necessary to explore this matter further.
It is sufficient to admit that the ban on religious advertising is arestriction, however limited, on the freedom of the citizen to profess,express or practise his religion and to enquire whether, in thecircumstances of the case, the restriction is justified.
ARTICLE 40.3 and ARTICLE 40.6.1
This case raises, yet again, the relationship between the unspecifiedright to freedom of communication guaranteed by Article 40.3 of theConstitution and the express right to freedom of expression guaranteedby Article 40.6.1 of the Constitution. The learned trial Judge expressedhimself puzzled as to why the right to express convictions and opinionsshould be protected by Article 40.6.1 of the Constitution while theright to communicate information should be protected by a differentArticle namely Article 40.3 of the Constitution. He was also puzzled asto why three rights so diverse as the right of freedom of expression,the right to free assembly and the right to join associations andunions should all be protected by the same sub-section of Article 40.6.He felt that the framers of the Constitution must have grouped thesethree rights together for some specific purpose but, as he was of theview that the case turned upon the right of freedom to communicate andnot on the right of freedom of expression, he did not consider itnecessary to carry this analysis any further.
The right to communicate as an unspecified right impliedly protected byArticle 40.3 of the Constitution was first identified by Costello, P. inhis Judgment in Attorney General v. Paperlink Ltd. (1984) ILRM page 373.It was also referred to by Keane, J. in Oblique Financial Services Ltd.v. The Production Company Ltd. (1994) 1 ILRM page 74 when hestated:-
“Article 40 (6) (1) is concerned not with the dissemination offactual information, but the rights of citizens, in formulating orpublishing convictions or opinions, or conveying an opinion; and therights of all citizens, including conveying information, arises in ourlaw, not under Article 40(6)(1) but under Article40(3)(1)”.
It appears to the Court that the right to communicate must be one of themost basic rights of man. Next to the right to nurture it is hard toimagine any right more important to man’s survival. But in this contextone is speaking ofa right to convey one’s needs and emotions by words or gestures as wellas by rational discourse.
Article 40.6.1 deals with a different though related matter. It isconcerned with the public activities of the citizen in a democraticsociety. That is why, the Court suggests, the framers of theConstitution grouped the right to freedom of expression, the right tofree assembly and the right to form associations and unions in the onesub-section. All three rights relate to the practical running of ademocratic society. As Barrington, J. stated in Irish Times Ltd. andOrs. v. Radio Iarnrod and Ors. (unreported, Judgment deliveredon the 2nd April, 1998) the rights of the citizens “to expressfreely their convictions and opinions” guaranteed by Article40.6.1 is a right not only to communicate opinions but also tocommunicate the facts on which those opinions are based. If this meansthat there is a certain overlapping between the right to communicateimpliedly protected by Article 40.3 and the right of the citizens freelyto express their convictions and opinions guaranteed by Article 40.6.1so be it. The overlap may result from the different philosophicalsystems from which the two rights derive.
The Court agrees, however, with Mr. Rogers when he submits that thelearned trial Judge was perhaps unduly restrictive in denying to theApplicantany right to rely on Article 40.6.1 because he was not attempting toinfluence public opinion. The Court doubts if the guarantee of freedomof expression contained in Article 40.6.1 is confined to those who wishto influence public opinion. A politician who addresses the nation overthe airwaves is clearly attempting to influence public opinion. But anadvertisement, though apparently directed at an individual consumer, mayalso be intended to influence consumers generally. One could not saythat the advertisement in the present case, with its opening question “What think ye of Christ?”, is directed exclusivelyat individuals and not at the citizenry at large.
The Court is not suggesting that to invoke the protection of Article40.6.1 a person must be attempting to influence the citizens at large.But, on the facts of the present case, it would appear that theApplicant is prima facie entitled to invoke the protection of Article40.6.1 as well as the protection of Article 40.3.
His problem is that both the right of freedom of expression and theright of freedom of communication are personal rights and both can, incertain circumstances, be limited in the interests of the commongood.
As Kenny, J. put the matter in Ryan v. Attorney General (1965) IR page294 at page 312:-
“None of the personal rights of the citizen are unlimited:their exercise may be regulated by the Oireachtas when the common goodrequires this. When dealing with controversial social, economic andmedical matters on which it is notorious views change from generation togeneration, the Oireachtas has to reconcile the exercise of personalrights with the claims of the common good and its decision on thereconciliation should prevail unless it was oppressive to all or some ofthe citizens or unless there is no reasonable proportion between thebenefit which the legislation will confer on the citizens or asubstantial body of them and the interference with the personal rightsof the citizen”.
PROPORTIONALITY.
It is clear from what has gone before that S.10 s.s.3 amounts to acertain limitation on the Applicant’s right freely to profess hisreligion, on his right of free communication and on his right to freedomof expression. It is also clear from the foregoing analysis of thelegislation that the Oireachtas wished to protect society from certaindangers which it perceived. The real question is whether the limitationimposed upon the various constitutional rights is proportionate to thepurpose which the Oireachtas wished to achieve.
In Heaney v. Ireland [1994] 2 ILRM 420 (at page 431) Costello, P. (whoseJudgment on this issue was upheld on appeal by this Court) described theprinciple of proportionality as follows:-
“In considering whether a restriction on the exercise ofrights is permitted by the Constitution the Courts in this country andelsewhere have found it helpful to apply the test of proportionality, atest which contains the notions of minimal restraints on the exercise ofprotected rights and the exigencies of the common good in a democraticsociety. This is a test frequently adopted by the European Court ofHuman Rights and has recently been formulated by the Supreme Court ofCanada in the following terms. “The objective of the impugnedprovision must be of sufficient importance to warrant over-riding aconstitutionally protected right. It must relate to concerns pressingand substantial in a free and democratic society. The means chosen mustpass a proportionality test.They must”
(a) be rationally connected to the objective and not be arbitrary,unfair or based on irrational considerations.
(b) impair the right as little as possible and
(c) be such that the effects on rights are proportional to theobjective”.
In the present case the limitation placed on the various constitutionalrights is minimalist. The Applicant has the right to advance his viewsin speech or by writing or by holding assemblies or associating withpersons of like mind to himself. He has no lesser right than any othercitizen to appear on radio or television. The only restriction placedupon his activities is that he cannot advance his views by a paidadvertisement on radio or television. The case is totally different fromthat which existed in Cox v. Ireland (1992) 2 Irish Reports page 503where a person who had violated the relevant section in even a minor waywas liable to lose his job (if he was a public servant) and to be barredforever from obtaining employment in the public service.
As previously stated the restriction on constitutional rights in thepresent case is very slight. That is probably what the learned trialJudge had in mind when, in the course of his Judgment, he used thephrase:-
“Proportionality has already been taken intoaccount”.
Mr. Hogan, for the Applicant, argued that it would have been possible tohave had – instead of a blanket ban on religious advertising – a moreselective administrative system whereby inoffensive religiousadvertisements would be permitted, and religious advertisements likelyto cause offence, banned. No doubt this is true. But the Oireachtas maywell have decided that it would beinappropriate to involve agents of the State in deciding whichadvertisements, in this sensitive area would be likely to cause offenceand which not. In any event, once the Statute is broadly within the areaof the competence of the Oireachtas and the Oireachtas has respected theprinciple of proportionality, it is not for this Court to interferesimply because it might have made a different decision.
It therefore appears to the Court that the ban on religious advertisingcontained in S.10 s.s.3 of the 1988 Act is rationally connected to theobjective of the legislation and is not arbitrary unfair or based onirrational considerations. It does appear to impair the variousconstitutional rights referred to as little as possible and it doesappear that its effects on those rights are proportional to theobjective of the legislation.
It seems to the Court clear that the learned trial Judge dismissed theApplicant’s claim because the Applicant had failed to rebut thepresumption of constitutionality in favour of the statutory provisionattacked. The Court does not think his statement that an Irish statutoryprovision which offended Article 10 of the European Convention would beunconstitutional in most if not all circumstances was intended the raisethe suggestion that one could by examining the European Conventiondecide on whether a statute violated theIrish Constitution or not. Whatever methodology may be adopted by theEuropean Court of Human Rights in deciding its cases we are bound topresume that a statute passed since the enactment of the Constitutiondoes not violate the constitution and we can only rule such an actunconstitutional if that presumption has been rebutted. In the presentcase it has not been rebutted and the Court therefore upholds thedecision of the learned trial Judge and dismisses the Applicant’sappeal.
Mahon, v Post Publications Ltd trading as The Sunday Business Post
Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty and His Honour Judge Gerald B. Keys (members of the Tribunal of Inquiry into Certain Planning Matters and Payments) v Post Publications Ltd trading as The Sunday Business Post
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Reported In: [2007] 3 IR 338,
Freedom of Expression
40. The Tribunal seeks, in the form of an injunction, a general order restraining future publication by the media. That form of order is called prior restraint. That is axiomatic and must be recognised before proceeding further in the discussion.
41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it.
42. It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Griffin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television PLC [1994] Fam. 192; [1994] 3 WLR 20:
“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
44. For the purposes of the present appeal, it is the last sentence of that passage which is important. The Tribunal needs to point to an exception clearly defined by law.
45. To be fair to the Tribunal, it has never contested or sought to diminish the importance of the freedom of the press to report and comment on its proceedings. For example, Ms Griffin has exhibited in her grounding affidavit the decision of the then Sole Member of the Tribunal dated 18th December 1998 which contains the following admirable statement:
“The Tribunal readily accepts both the importance and the role of the media in educating public opinion. This role is specifically acknowledged in the language of Article 40.6.1.i of the Constitution. The media enjoys a continuing right to freedom of expression that to be any way meaningful must include a right to report, comment and criticize. This Tribunal in common with any other public entity in this State can legitimately be the subject of adverse media comment. The Tribunal does not make any case that it is immune from the ordinary course of media reporting, comment and criticism.”
46. The Tribunal does not, on this appeal, contest these propositions. It expressly accepts that the right of freedom of expression is constitutionally guaranteed and, furthermore, that the law in this area must now be considered in the light of the European Convention of Human Rights Act, 2003. It submits, however, that the qualifications on the right to freedom of expression are as important as the right itself.
47. It is, therefore, necessary to consider the extent and nature of the right at issue before addressing the question of the restrictions which may be justified.
48. Article 40.6.1(i) of the Constitution guarantees the: “right of citizens to expressly freely their convictions and opinions……” The present case concerns the communication of information rather than opinions. The constitutional origin of the right to communicate information has been considered in two cases:
49. In Attorney General v. Paperlink Limited [1984] I.L.R.M. 373 at p. 381, Costello J situated it in Article 40.3.1°. He reasoned as follows:
“[T]he act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1°(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°.”
50. In Murphy v. I.R.T.C. [1999] 1 I.R. 12, Barrington J, delivering the judgment of the Court, appears to have modified this, saying, at page 24 of the judgment:
“It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to nurture it is hard to imagine any right more important to man’s survival. But in this context one is speaking of a right to convey one’s needs and emotions by words or gestures as well as by rational discourse.
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland [1998] 1 I.R. 359, the rights of the citizens “to express freely their convictions and opinions” guaranteed by Article 40.6.1° is a right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°, so be it. The overlap may result from the different philosophical systems from which the two rights derive.”
51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.
52. The real issue is the extent to which and the grounds upon which restrictions on that right may be justified. In the constitutional context, Barrington J, at a later point in the judgment of the Court quoted above, added that “both the right of freedom of expression and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of the common good.” (page 25). The Court proceeded to judge the case before it (concerning a statutory prohibition on broadcasting of advertisements “directed towards any religious or political end…”).
53. Our courts, therefore, recognise that the right of freedom of expression is not absolute. It may be necessary to reconcile it, in the event of conflict, with other constitutional rights. It may even, as in the case of Murphy v. I.R.T.C., be restricted or controlled by laws passed for the advancement of other legitimate social purposes. In such cases, the courts have found it useful to have resort to the principle of proportionality. The judgment of Barrington J identified the issue at page 26 as follows:
“The real question is whether the limitation imposed upon the various constitutional rights is proportionate to the purpose which the Oireachtas wished to achieve.”
54. As I hope to explain, this approach is, and has been recognised by this Court to be, closely comparable to that adopted by the European Court of Human Rights when interpreting the Convention.
55. Article 10 of the Convention guarantees the exercise of freedom of expression in the following terms:
2 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
56. Just as the Court (Barrington J) in Murphy v I.R.T.C., posed for itself the question whether the statutory restriction on broadcasting religious broadcasts was “proportionate to the purpose which the Oireachtas wished to achieve,” a question may be formulated as a test for the present case in accordance with Article 10(2) of the Convention. In De Rossa v Independent Newspapers [1999] 4 I.R. 432, a libel case, Hamilton C.J., speaking for the majority of the Court recalled, at page 449 of the judgment, the dictum of Henchy J in Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 at p. 450 that “the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.” Hamilton C.J. added that there did not “appear to be any conflict between Article 10 and the common law or the Constitution.” That is an issue to which I will return in more detail.
57. I believe, therefore, that the Convention analysis provides a particularly useful mechanism for examination of the justification for imposition of the restriction sought by the Tribunal in the present case. As Geoghegan J said in his concurring judgment in Murphy v I.R.T.C., “[a]lthough the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.” This dictum was approved by Hamilton C.J, speaking for the majority of the Court, in his judgment in De Rossa v Independent Newspapers, cited above.(page 450).
58. The restriction sought is said to justified by the need of the Tribunal to protect the confidentiality of information communicated to it while it is carrying out its functions in accordance with the Tribunals of Inquiry Acts and the Oireachtas resolutions which established it.
59. Section 2 of the European Convention on Human Rights Act 2003 now requires the Court in interpreting “any statutory provision or rule of law, …… in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State’s obligations under the Convention provisions.” That provision applies to the provisions of the Tribunals of Inquiry Acts and to the general or common law regarding the protection of confidential information.
60. A restriction on freedom of expression, if it is to be permitted pursuant to Article 10(2) of the Convention, must, as that provision requires, firstly, be prescribed by law and, secondly, be “necessary in a democratic society…” It must, as the Court of Human Rights has said serve “a pressing social need.” It must also, of course, serve one of the listed interests. One of these is: “preventing the disclosure of information received in confidence.” Kelly J quoted the following passage from the speech of Lord Hope of Craighead in R. v. Shayler [2003] 1 A. C. 247 at page 280:
” The wording of Article 10(2) …… indicates that any such restriction, if it is to be compatible with the Convention right, must satisfy two basic requirements. First, the restriction must be, ‘prescribed by law’. So it must satisfy the principle of legality. The second is that it must be such as is ‘necessary’ in the interests [in that case] of national security. This raises the question of proportionality. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of this case. As any restriction of the right to freedom of expression must be subjected to very close scrutiny, it is important to identify the requirements of that jurisprudence before undertaking that exercise.
The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it is being resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v. The United Kingdom, 2 E.H.R.R. 245, para.49 and also from Winterwerp v. The Netherlands [1979] 2 E.H.R.R. 387, 402 – 403, para.39 and Engel v. The Netherlands (1) 1 E.H.R.R. 647, 669, paras.58 to 59, which were concerned with the principle of legality in the context of Article 5(1); see also A. v. The Scottish Ministers [2001] SLT 1331, 1336 – 1337.”
61. It is important to note the first of these requirements, that of legality. The restriction proposed must be based on a provision of the law of the state. Hoffmann L.J. said as much in the passage already cited. It is not necessary that the exception invoked be prescribed by statute. The law of defamation indubitably restricts freedom of expression, but is almost entirely a creature of the common law. But it must be based on known and accessible legal provisions. It must, as Lord Hope says be: “sufficiently precise to enable [an affected individual] to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.”
62. The principle of proportionality is not expressly mentioned in the Article, but has been developed in the case-law of the Court of Human Rights. It derives from the requirement that the restriction be “necessary in a democratic society.” The Court of Human Rights has consistently held that to satisfy this requirement the restriction sought must serve “a pressing social need.” (see Observer and Guardian v the United Kingdom judgment of 26 November 1991, Series A no. 216 p.30). A further crucially important aspect of that requirement is that the restriction should not be any broader than strictly necessary to serve the interest invoked to justify it. Lord Hope analysed proportionality in a further passage, also quoted by Kelly J, at page 281of the same speech:
” The first is whether the objective which is sought to be achieved the pressing social need is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.”
63. Our own courts have consistently approved and applied, for instance in Murphy v I.R.T.C., the following dictum of Costello J (as he then was) regarding the principle of proportionality in Heaney v. Ireland [1994] 3 I.R. 593 at 607:
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights…… and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
1. (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
2. (b) impair the right as little as possible, and
3. (c) be such that their effects on rights are proportional to the objective …”
64. The Tribunal, as I have explained, founds its application for the remedies sought exclusively on the law of confidence. Necessarily, it is driven to show that its reliance on the confidentiality of the documents it has circulated justifies the restriction of the defendant’s right of freedom of expression.
65. Finally, under this heading, it is is important to reiterate that what is sought by the Tribunal amounts to a form of prior restraint. The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the most careful scrutiny. In Observer and Guardian v United Kingdom, (cited above), the Court held:
“…Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such………On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the factual justification for the restriction.” (cited above). It must scrutinise the present application for an injunction seeking prior restraint on publication with particular care.
Geoghegan J.
The learned trial judge, however, appears to take the view that the Tribunal can only impose confidentiality in relation to documents in respect of which the Tribunal itself has given an undertaking as to confidentiality to the provider of them. The judge refers to the background against which the application must be viewed. In this regard he refers to the right to free expression recognised under Article 40.6.1.i of the Constitution and to the later part of the Article which there is specific mention of the liberty of expression of the press. He refers to the Irish Times v. Ireland [1998] 1 I.R. 359 and in particular to the judgment of Barrington J. who held that the article protected a dissemination of information as well as the expression of convictions and opinions. I find it difficult to see a relevant connection between the noble views of Barrington J. on the one hand and the sleazy leaking of Tribunal documents on the other.
The learned trial judge then goes on to treat of the right of the freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms but he concedes that both the constitutional rights and the Convention rights are subject to limitations. Article 10 expressly permits restrictions “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
The learned High Court judge rightly then points out further that even at common law freedom of speech and the press will be protected and he refers in particular to R. v. Central Independent Television plc Fan. 192. But again I would make the comment that the noble sentiment expressed in that case by Hoffmann L.J. (as he then was) had no relevance to the issues in this case. The same is true, in my view, of other important authorities referred to in the judgment.
Among the quotes to which the learned trial judge has attached significance is the following quotation from the judgment of Hardiman J. in O’Callaghan v. The Tribunal Supreme Court (unreported 9th March 2005).
“In my view, the Tribunal cannot by the unilateral adoption of a ‘policy’ on its own part confer the quality of confidentiality, absolute unless the Tribunal itself waives it, on any material. To permit the Tribunal to do this would, in my view, be to allow it in effect to legislate for the deprivation of a party before it of rights to which he is entitled.”
That passage does not support the case being made by Post Publications Limited. It has never been in dispute that any undertaking as to confidentiality given at the investigative stage is subject to appropriate use being made of the document or information at a public hearing. What Hardiman J. was criticising was the decision of the Tribunal not to produce documentation at a public hearing when fair procedures required that it should be produced for the purpose of cross-examination. At p. 48 of his judgment, the learned High Court judge indicates that he is not in principle averse to an injunction being made against a newspaper leaking tribunal documents. The following passage from that page makes this clear.
“Had the Tribunal been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved by injunctive relief, there might be something to be said for the courts intervention; but that is not what is sought. Both in the affidavit evidence, the form of order sought and the submissions made, it is quite clear that the Tribunal seeks to go much further and to render confidential everything contained in a brief regardless of nature or source.
Even if one considers the position apart from O’Callaghan’s case could there be any basis to support such a wide claim of confidentiality?”
In the last analysis this is a matter of judgment and I respectfully differ from the view taken by the learned High Court judge for the reasons which I have already indicated.
The next section of the High Court judgment deals with the law of confidentiality as such. What is discussed essentially, and quite correctly, is the equitable rather than the contractual right to confidentiality. The trial judge set out useful principles enunciated by Megarry J. (as he then was) in Coco v. A.N. Clarke (Engineers) Limited [1969] R.P. C. 41. The judge quoted the following passage from the judgment of Megarry J.
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The learned trial judge with references to the first of these requirements refers to dicta of Lord Greene where he said that “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. Lord Greene’s reasoning was that there could be “no breach of confidence in revealing to others something which is already common knowledge”.
It is interesting and helpful to apply those principles of Megarry J. and Lord Greene M.R. to the present appeal. I have already made clear that it is not the case of the Tribunal that it can impose confidentiality on a public document per se. The information that the public document is included in the brief should be regarded as confidential in the view of the Tribunal and I think that such information given the context in which the Tribunal asserts that view does “have the necessary quality of confidence about it.” I believe this to be so even if in a few isolated cases it may well be that context is not of great significance. It is reasonable in all the circumstances for the Tribunal to have this policy because normally, the context in which the document is sent out will be relevant and should be kept confidential until the public hearing. The second requirement of Megarry J. is also fulfilled in that the Tribunal itself is imposing confidentiality on the person who is receiving it in advance of the public hearing. That is quite a normal basis for confidentiality and indeed newspapers themselves and media outlets are well accustomed to embargos being placed on information pending their being made public in the right way. The third requirement of Megarry J. is also fulfilled in this case as in my view the leaking of the information with knowledge of its confidentiality was clearly unauthorised. Such leaking was to the detriment of the Tribunal’s orderly conduct of its business.
The learned High Court judge in the view which he has taken has also relied on the following passage from the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspaper [1990] 1 A.C. 109.
“I start with a broad principle (which I do not intend in any way to be definitive) that a duty of confidence arises where confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent of which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious”
I find nothing in that passage which if applied would disentitle the Tribunal to the relief which it seeks.
The learned trial judge then refers to the case which in this jurisdiction is the most relevant on the law of confidentiality in general. That is House of Spring Gardens v. Point Blank [1994] I.R. 611. The following passage from the judgment of Costello J. in the High Court which was approved by the Supreme Court reads:
“First, I think that the information must be information the release of which the owner believes will be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous headings must be reasonable. Fourth, I think that the information must be judged in light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information and trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
The learned trial judge commenting on that quotation from Costello J. observed as follows:
“Thus, it appears that, whether one is speaking about confidentiality in the context of trade or commerce or of the type dealt with in Attorney General v. Times Newspapers or indeed the present case, confidentiality can only attach to information which is truly confidential. It must have the necessary quality of confidence about it. Thus documents or information in the public domain cannot be regarded as confidential.”
I infer from that passage in his judgment that the learned trial judge takes the view that the information imparted as a matter of fair procedures in order to give advance notice to some person who could be damaged by evidence be given at a public hearing does not have “the necessary quality of confidence about it”. Once again, it would appear to me that his reasoning is based on the fact that the brief sent out may include a document which is in the public domain such as a company search or a folio. However, as I have already pointed out more than once, the response of the Tribunal to this objection is that it never intended nor could anyone have thought that it intended that a document in the public domain, as such, would be covered by an obligation of confidentiality. What the Tribunal was trying to ensure was that the fact of such documents being included in the brief would be kept confidential. At any rate, the brief for the most part would consist of copies of statements or documents that were not yet in the public domain and were intended by the Tribunal to be kept private until a public hearing for the purposes of overall fairness and the overall good order in conducting the Tribunal. In my view, those copy documents and statements have “the necessary quality of confidence about (them)”.
The obligation of confidentiality independently of contract is an equitable obligation as pointed out by Costello J. when he relied on a number of English authorities. It seems to me therefore irrelevant to the question of whether the newspaper was entitled to disseminate such information that it had not itself entered into some contract with the Tribunal as to confidentiality. Once it had notice of the policy of the Tribunal and of the intention that documentation sent out to these persons would be kept confidential pending public hearings it was bound in equity not to flout such confidentiality.
Again on the next page of his unreported judgment the learned trial judge makes clear quite correctly that “the only material which could be capable of protection is that which has the necessary quality of confidence about it.” But as I have already pointed out, his opinion that it did not have that “necessary quality” seems to be based on the fact that the briefs may, from time to time, contain documents which in the ordinary way were in the public domain. As I understand it, the learned High Court judge was not in principle against granting an injunction. What he objected to was the width of the injunction sought. In my opinion, the policy adopted by the Tribunal of sending out a brief and making the contents confidential is a reasonable one. I cannot imagine that the Sunday Business Post would have the slightest interest in publishing a document in the public domain unless it could put it into context. It is that context which the Tribunal quite reasonably wants to be kept private until the public hearing.
When reserving his judgment, the learned trial judge did suggest to the parties that he might want to re-enter the matter for discussion as to a narrower form of injunction than those sought. The course of action which the trial judge took in the event cannot be said to contravene any expressed intention. Nevertheless, I am satisfied that if the learned trial judge had re-entered the matter and indicated to the parties that he was unhappy with the form of injunction suggested, counsel for the Tribunal would have applied their minds to achieving a narrower form of injunction that might have been acceptable to the judge. The judge was in no way obliged to facilitate the parties in that way but I think that there was an element of expectation (I will deliberately not use the word “legitimate”) on the part of counsel for the Tribunal that if the outcome of the action was to be determined on the basis of the form of injunction sought it might seem likely that the judge would have permitted further discussion.
Before reaching my final conclusion, there is one other matter which was aired at the hearing of the appeal and with which I would need to deal. It has been suggested that for the Tribunal to create any element of confidentiality in respect of documents or information would require a special enactment in the Tribunal of Inquiries Acts or elsewhere. The argument then runs that the Tribunal being a creature of statute does not have inherent powers. I cannot accept this argument for a combination of reasons. First of all, the system of delivering an advance brief to somebody who might be adversely affected by evidence likely to emerge at a public hearing arises directly from the Constitution and the constitutional obligations both to adopt fair procedures and to protect the good names of persons. If the Tribunal did not owe that constitutional obligation it would be much simpler and more efficient from its point of view to keep everything secret until the public hearing. A constitutional obligation superimposed in this way and to some extent creating problems for the efficient running of the Tribunal cannot be more than is reasonable in all the circumstances and it, therefore, must necessarily embrace any desirable limitation that does not derogate from that obligation such, as in this case, the imposition of confidentiality. The right to impose such confidentiality is, therefore, merely an element in the carrying out of the constitutional obligation and where it is reasonable it would seem to me that there is an implied right by virtue of the Constitution to impose it. A special section is not therefore necessary. Furthermore and for the same reason the legal basis for the alleged restriction exists for the purposes of Article 10 of the European Convention of Human Rights. The imposed confidentiality is necessary for the “protection of the reputation or the rights of others.”
I am satisfied that the evidence establishes that there has been serious leaking over a number of years by the respondent’s newspaper and other newspapers of documents and information which would have been known to have been intended to be kept confidential pending a public hearing. I am equally satisfied that such leakages undermine the work of the Tribunal and that the Tribunal has a right to seek an injunction to stop it. It is perhaps unfortunate that at the hearing before the High Court the Tribunal did not place before the learned High Court judge alternative more precisely worded and somewhat narrower forms of injunctions but I do not think that on account of this, the court should take the view that no injunction of any kind should be granted. I have carefully considered the alternative slightly more modified form of injunction suggested at the hearing of this appeal by Mr. Paul O’Higgins, S.C.. I have already cited that form of draft injunction but I will cite it again now for clarity.
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing: -”
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the document so circulated.”
I would allow the appeal by setting aside the order of the High Court and substituting for that order an injunction in those terms.
Counsel for the respondent in reply said that the complaint relating to the alleged failure to give proper reasons for the decisions was groundless in that, at all relevant times, the applicant was well familiar with the Prison Rules and the policy of preventing direct communication between members of the media and all prisoners. This, he claimed, was fully supported by the affidavit of the deputy governor and, in particular, by para. 7 thereof. Secondly, he relied strongly on the decision of Costello J. in Kearney v. Minister for Justice [1986] I.R. 116 in which the trial judge held that r. 63 of the Prison Rules, as interpreted and thus applied by the respondent, was not unconstitutional. He went on to quote the following passage from p. 120 of that judgment which, in his opinion, outlined the proper test which should be followed in this case:-
“The approach of the courts in both these cases [this refers to two cases from the United States] to the question of the censorship of prisoners’ correspondence is similar to that which I have adopted in this case. As stated in Procunier v. Martinez (1973) 416 U.S. 296 at p. 413:-
‘We hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorising mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved’.”
Counsel also referred to the ex tempore judgment of the Supreme Court given by Finlay C.J. on the 9th July, 1993, in a case involving the same applicant against the governor of Mountjoy Prison. That judgment, which again dealt with r. 63 of the Prison Rules accepted that the security and good discipline of the prison justified the existence of that rule. The then Chief Justice, however, did say in that case that when the governor decided under r. 63 to prevent a letter, written by a prisoner, being communicated to an outside addressee, he should give to the prisoner in short form the reasons for his decision.
Reliance was also placed on a passage from McDermott on Prison Law (2000) where at pp. 141 to 142 the author said:-
“Irish courts have made it clear that a prisoner must be given reasons for the censoring of his correspondence. In Hutchinson v. Minister for Justice ([1993] 3 I.R. 567) the applicant sought leave to apply for an order prohibiting the respondent from withholding or intercepting his mail. He alleged that a letter he wrote to one of his relatives complaining about prison conditions was never received and that he had not been informed of which letters were or were not sent nor of the non-sending or erasure of any part of a letter. In the High Court Murphy J. refused to grant leave but this decision was reversed on appeal by the Supreme Court. Finlay C.J. stated:
‘I am satisfied that prima facie a person who is in prison serving a sentence must not be incommunicado and he has a general right subject to prison discipline to communicate with persons outside the prison. That being so it seems to follow that at least this applicant should be entitled to information or may be entitled, if there is truth in the allegations he makes, to information as to what letters are not being sent out and some very short reason why that is so …
… a failure to do this would be outside the powers of the Governor of the prison as contained in rule 63 having regard to the right of a prisoner not to be held incommunicado’.”
In addition to the above, it was strongly urged that the policy adopted by the respondent in refusing direct access between a prisoner and the media, either by way of correspondence or visits, was necessary so as to prevent disruption within the prison and so as to maintain good order, discipline and security within. Such a refusal was reasonable as it also leaves untouched a prisoner’s rights of access to his family and friends, to his legal advisers and also to his Dáil representative.
Further, it was submitted that this court should approach the case on the basis of ascertaining whether or not the respondent’s policy constituted an “irrational decision” within the meaning of O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at p. 70 and if that test was applied then, in accordance with correct legal principles, the court should conclude that the evidence falls far short of what is required in order to satisfy that threshold.
And finally, it is important to observe that the respondent did not argue for a denial of the right of the applicant to access the media simply as part of his term of punishment, an argument which was advanced in R. (Hirst) v. Secretary of State for the Home Department [2002] EWHC 602; [2002] 1 W.L.R. 2929.
It should be noted that no procedural or technical point was taken about the format of the pleadings or about the date of the first refusal vis-Ã -vis the leave order or about the Minister’s input under r. 59. Whilst it was asserted that the applicant had not provided evidence in support of the media’s importance in the investigation of cases involving alleged miscarriages of justice, no issue was taken on the absence of a request for direct media contact. On the contrary, I was asked to proceed on the basis that the impugned decisions covered both correspondence and visits.
There are two issues which might conveniently be dealt with at this stage, the first of which is whether or not this long-standing policy of the Irish Prison Service, as implemented in this case by the respondent, is reviewable by this court in judicial review proceedings. Though dealt with by the moving party in his written submissions, the respondent did not seriously challenge the applicant’s right of access to the court for this purpose. No great difficulty could arise on a challenge to the Prison Rules per se, as there have been numerous cases in that regard. Some of them are in fact mentioned later in this judgment. It is the challenge to the policy that obviously caused more concern. Whilst one would have to await a case in which the point became pivotal, nevertheless, I would be greatly surprised if this judicial organ of government, which by Article 34 of the Constitution is enjoined to administer justice, was not available to a citizen who alleges that his Article 40 personal rights have been infringed by the exercise of such a policy. If it were otherwise, such a person would have no forum in which to make a case and the constitutionally established courts of this country would be debarred from performing one of the most fundamental duties and obligations entrusted to them, namely the vindication of such rights. Indeed, I think that this has been recognised in the decision of Murphy J. in Duff v. Minister for Agriculture and Food (No. 2) [1997] 2 I.R. 22 at pp. 43 and 44. Accordingly, this judgment proceeds on the basis that the relevant Prison Rules and their operation, via this policy, are reviewable in judicial review proceedings by this court.
The second point which can be addressed concerns the fact that the applicant is not seeking in these proceedings any order declaring as invalid per se the Prison Rules, or in particular rr. 59 and 63 thereof, on the grounds that the same are contrary to the Constitution. Rather, it is submitted on his behalf that the manner and way in which the respondent has interpreted and as a result has applied these rules to the applicant’s request, constitutes a violation of his constitutionally protected rights under Article 40.3.1, 2 and 40.6.1 of the Constitution. This manner of challenge is, in my view, perfectly permissible. His claim, in my opinion, is in no way fatally compromised by the absence of seeking a declaration that rr. 59 and 63 are repugnant to the Constitution. There is nothing preventing an applicant from making his case in the way in which he has or from relying upon the following passage from East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 at p. 341 where Walsh J. said:-
“At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
This statement of principle, I have no doubt, applies to the Prison Rules.
As a result, but subject to the permissible legal restrictions hereinafter referred to, the Prison Rules must, if such an interpretation is reasonably open, be construed and applied in such a manner as respects and vindicates the constitutional rights of the applicant and which upholds the principles of natural justice. In addition, but again subject to the same restrictions, if the impugned decisions in this case were made not under the Prison Rules but otherwise on a lawful basis, they would equally have to respect the rights and principles last mentioned.
Before dealing with what I consider to be the substance of the applicant’s complaint could I say that, in my view, the principles enunciated in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 have doubtful application to the present action. These principles had, I think, their foundation in Associated Provincial Picture houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 in which the following general observations were made by Lord Greene M.R. at p. 230 of the report:-
“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere … but to prove a case of that kind would require something overwhelming.”
When considering Lord Greene M.R.’s test and its subsequent interpretation by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, Henchy J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 set out what the Irish position was at p. 658 of the report:-
“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”
In the context of reviewing a decision of An Bord Pleanála, the Supreme Court, through the judgment of Finlay C.J., in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, added what appears to be quite an important additional element to the above quoted formulation of this principle. The Chief Justice said that for an applicant to succeed in quashing a decision of that authority on this ground, he would have to establish “to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision” (see pp. 71 to 72 of the report.)
It seems to me that both The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, but in particular the latter, were based in a factual context totally distinguishable from the present case, which case raises issues of the impugned decisions being invalid as either being outside the scope of rr. 59 and 63 and/or as constituting a violation of the applicant’s constitutional rights. If O’Keeffe v. An Bord Pleanála was to apply, it would mean that this court should ask itself whether or not the respondent had before him any relevant material which would support its decision. I do not believe that when the exercise of a fundamental right such as the right to communicate is at the core of an application that this test is either proper or appropriate. Accordingly, I do not propose to decide this case on the basis either of The State (Keegan) v. Stardust Compensation Tribunal or O’Keeffe v. An Bord Pleanála .
In addition, I cannot identify within the papers any factual basis upon which it is open to the applicant to argue that the deputy governor, who in fact made the decisions in question, was motivated by what on his behalf has being termed “institutional bias” and that as a result, on this ground, his decisions are invalid. The said deputy governor was implementing a rigid policy with no room for personal discretion. Irrespective, therefore, of who the decision-maker was, it seems that he was obliged to comply with this position. Whether, in such circumstances, he was within the prison service for a very short period of time or for a very long period of time is entirely irrelevant as the conclusion which he or she was bound to make would be exactly the same. Consequently, I do not believe that there is any substance in this allegation.
This point is, of course, entirely different from any arguments that the policy itself is underpinned by institutional attitude.
That within our system of law there is a right to communicate appears to have been accepted, rather than established, by Darcy J. in The State (Murray) v. Governor of Limerick Prison (Unreported, High Court, Darcy J., 23rd August, 1978) when the judge held that as between husband and wife who were both convicted prisoners and serving long terms of imprisonment, a restriction imposed on their personal communication through the prison regulations did not render their respective detentions unlawful. The basis of such a right, however, was considered, in some depth, by Costello J. in Attorney General v. Paperlink Limited [1984] I.L.R.M. 373 at p. 381:-
“[T]he act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1.”
The said Article 40.3.1 of the Constitution contains a guarantee on the part of the State “in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
Sub-article 2 of the same Article then obliges the State to protect”as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”.
Article 40.6.1 of the Constitution on the other hand, inter alia, reads:-
“The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
i the right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.”
Costello J. was, therefore, making a distinction as to the basis of the constitutional cover for, on the one hand, the right to communicate facts and information and on the other the right to express convictions and opinions. In respect of the former, he felt that the protection was founded upon Article 40.3.1 of the Constitution whilst in respect of the latter it was Article 40.6.1(i).
As it transpires, the Supreme Court in the later decision of Murphy v. I.R.T.C. [1999] 1 I.R. 12, felt that this distinction as to source was not as definite or defining as this statement might suggest, but crucially in neither that case nor indeed in any other case since Attorney General v. Paperlink Limited [1984] I.L.R.M. 373 has it ever been doubted, much less decided, that whatever its true basis might be, the right to communicate has a constitutional foundation and rightly so has been and is described as a basic or fundamental right.
Costello J., in Kearney v. Minister for Justice [1986] I.R. 116, summarised what his views were on this right in the following passage which appears at p. 118:-
“In my view (a view which I expressed in some detail in Attorney General v. Paperlink Limited [1984] I.L.R.M. 373 and which I will summarise here) the Constitution protects by Article 40, s. 3, sub-s. 1, a right to communicate as one of the personal rights which are unspecified in that Article. The right, however, is not an absolute one. It cannot be described as a right to communicate ‘freely’ and its exercise may be regulated by law. As to the lawful restraints which the State may impose on the exercise by a citizen of constitutionally protected rights, my views (again summarised from opinions expressed more fully in Murray v. Ireland [1985] I.R. 532) are these.”
Whilst such views, as last mentioned, are later referred to in this judgment, it is clear that whatever its true basis may be, the right to communicate is not an absolute right and by law its exercise can be subject to lawful conditions, restrictions or limitations.
In 1998 and in 1999 the Supreme Court considered the interaction between Article 40.3 and 40.6.1 of the Constitution in the context of this right to communicate. The later decision, namely Murphy v. I.R.T.C. [1999] 1 I.R. 12, can be taken as clarifying the relationship. In his judgment, Barrington J., having said at p. 24 “that the right to communicate must be one of the most basic rights of man”, went on to express the view of the court that Article 40.6.1 of the Constitution not only covered expressions of convictions and opinions but also the facts (and presumably information) on which those opinions were based. In addition, the court doubted whether an applicant, in order to avail of the protection which covers the communication of convictions, opinions, facts or information, had to have as his purpose or aim an intention to influence or attempt to influence public opinion. Though, as a matter of fact, the communication emanating from Mr. Murphy could be said to constitute such an attempt to influence the public, nevertheless that requirement was not an essential precondition for relying upon Article 40.6.1 of the Constitution. Moreover, given what Barrington J. said in Irish Times Ltd. v. Ireland [1998] 1 I.R. 359, to the effect that Article 40.3 of the Constitution guaranteed not only the right to communicate fact or information but also convictions, opinions and feelings, the court concluded, on this particular aspect in Murphy v. I.R.T.C. [1999] 1 I.R. 12 at p. 25 that”there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1″.
It, therefore, seems quite clear that depending on the circumstances of any particular case, a claimant or plaintiff may be able to rely, not only on Article 40.3 of the Constitution but also on Article 40.6.1. In the instant proceedings, it appears to me that, in all probability, the applicant can rely upon both sub-articles in furtherance of his claim. His attempts to communicate with R.T.É.involved apparently a mixture of fact, information, convictions and opinions and with the result that, by seeking to influence the media to bring to the attention of the public what he describes as a miscarriage of justice, he was undoubtedly, in a most direct way attempting to influence public opinion. Consequently, I believe that both sources of protection are available in principle to him.
If, however, I should be incorrect in this view it seems to me that for practical purposes, in the particular circumstances of this case, there is no valid distinction in the consequences which would follow from confining reliance to one or other but not both of these sub-articles. No issue on the facts of this case arises which could be said to involve “public order or morality or the authority of the State” as that phrase is contained in Article 40.6.1. Therefore, in my opinion, it is not necessary to conclusively decide on the preferment of one sub-article to the exclusion of the other.
The applicant, as previously stated, is a prisoner lawfully detained pursuant to court warrant and is serving a term of imprisonment which was imposed upon him by the Special Criminal Court as subsequently varied by the Court of Criminal Appeal. He is therefore a person whose”normal constitutional rights are abrogated or suspended”; see The State (McDonagh) v. Frawley [1978] I.R. 131. McMahon J., in The State (Fagan) v. Governor of Mountjoy Prison (Unreported, High Court, McMahon J., 6th March, 1978) at p. 18 felt that such a prisoner, who
retained his right of access to the courts, could complain about any restriction or interference with those constitutional rights of his, which were “not necessary in order to give effect to the sentence of the court in the institution in which it must be served [emphasis added]”. In other words it seems to me that what the judge was saying was that by virtue of a lawful sentence of imprisonment being imposed on and being served by a prisoner, that person, for the duration of his sentence, had to suffer not only interference with the exercise of his constitutional right to liberty but, in addition, had to suffer such restrictions on other constitutional rights which were”necessary” in order to accommodate the serving of that sentence in the designated prison. Unless, therefore, any such restriction or interference could be justified in this way, then despite being lawfully imprisoned, a prisoner otherwise detained was entitled to exercise all of his constitutional rights.
Barrington J. discussed those problems at some length in The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82. Having referred to The State (McDonagh) v. Frawley [1978] I.R. 131, which dealt with the Emergency Powers Bill 1976 and thus not with a convicted person but with a person arrested and detained without conviction or perhaps even charge, he went on to express his own view on the position of a prisoner serving a lawful sentence. At p. 89 he said:-
“This, however, [referring to the restricted availability ofhabeas corpus] is very far from saying that a convicted prisoner has no rights. A convicted prisoner must accept prison discipline, and accommodate himself to the reasonable organisation of prison life as laid down in the Prison Rules. The court said that while he is serving his sentence ‘many’ of his normal constitutional rights are abrogated or suspended. The clear implication of this is that not all of his constitutional rights are abrogated or suspended. Examples of constitutional rights which are clearly not abrogated or suspended are the right to life or the right to the free profession and practice of religion subject to public order and morality.
Mr. Carney [counsel] invited me to hold that a sentence of imprisonment implies only the deprivation of the prisoner’s right to liberty, and leaves all his other constitutional rights intact. I cannot accept this. First, it appears to me that the right to personal liberty is such a fundamental right that its loss necessarily has implications for many other personal rights of the prisoner. But the matter must go further than this. … A convicted prisoner, on the other hand, is undergoing a recognised form of punishment for his crime. One of the incidents of this form of punishment is that he must submit to, and is entitled to protection of, the Prison Rules.”
The Prison Rules, according to Barrington J. at p. 91, had as their purpose the reconciliation of “the need for security and good order in the prison with the prisoners’ subsisting constitutional rights”. And finally the judge also said at p. 92 that “prisoners’ subsisting rights can often be ascertained from the Prison Rules themselves, read in the light of the Constitution”.
This judgment, in my opinion, sets out in more elaborate form and in greater detail the core point made by McMahon J. in The State (Fagan) v. Governor of Mountjoy Prison (Unreported, High Court, McMahon J., 6th March, 1978) which was that to a convicted person serving a sentence of imprisonment, the lawful deprivation of his right to liberty was of such a fundamental nature that this denial necessarily had implications for the exercise of other personal rights by that person. Those other rights which may be affected stem from the person’s detention and from the need, as identified in this case, for”security and good order” in the prison where the sentence is being served. Again, therefore, it appears to me that the rights, the exercise of which can be suspended or abrogated or otherwise interfered with, are those which “necessarily” follow from the prisoner having to serve a term of imprisonment and from the requirements of the prison service to sustain security and good order therein as between all inmates. Disregarding for a moment the scope or extent of the interference which could thus be justified, it seems to me that apart from the rights which are identifiable in this way, all other rights survive a prisoner’s incarceration. If that is so, such surviving rights must be capable of exercise by him.
In Murray v. Ireland [1985] I.R. 532, Costello J. when dealing with the constitutional position of a prisoner post his lawful conviction, at p. 542 of the report said:-
“When the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or (b) which are compatible with the reasonable requirements of the place in which he is imprisoned, or to put it another way, do not impose unreasonable demands on it.”
Wolff v. McDonnell (1973) 418 U.S. 539 was cited as an American authority which accorded with the view just expressed. See also Kearney v. Minister for Justice [1986] I.R. 116 where at p. 118 of the report, this view was again affirmed by Costello J.
Kearney v. Minister for Justice [1986] I.R. 116 is also, of course, of considerable importance in that the applicant challenged the constitutionality of r. 63 of the Prison Rules. In upholding the respondent’s submitted justification for the existence of that rule, an important aspect of which was the governor’s method of implementing it, Costello J. said that his approach to the case was similar to that adopted in two cited American authorities including Procunier v. Martinez (1973) 416 U.S. 296. A very short passage from Procunier v. Martinez , quoted at p. 120 of Kearney v. Minister for Justice reads:- “Second, the limitation of First Amendments freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved”. Whether the ultimate decision in Kearney v. Minister for Justice could be said to have fully articulated this limitation is not a matter of concern to me in this judgment but what is, is the clear and definite enjoinder that any infringement or restriction on the exercise of a constitutional right of a prisoner must be no more than what is “necessary or essential” for the protection of the interest or objective which grounds the justification for such interference or restriction in the first place. In Procunier v. Martinez it was said to be security, order and rehabilitation.
In the instant case it is said, by the deputy governor, to be the security and good order of the prison as well as concerns for victims and their families. I, therefore, believe that the views of Costello J. in both Murray v. Ireland [1985] I.R. 532 and Kearney v. Minister for Justice [1986] I.R. 116 were that any such limitation must not only be reasonable but also, by declaring that this approach was the same as the court’s in Procunier v. Martinez (1973) 416 U.S. 296, must pass this test of necessity; otherwise such interference cannot be justified with the result that an infringement may be declared.
With regard to the general position of a prisoner, I endeavour to summarise the position in Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April, 2001). At p. 16 of the judgment the following principles are outlined:-
“(a) A convicted person differs from a person untouched by the legal process.
(b) A convicted person differs from a person arrested and detained,simplicter.
(c) A convicted person:-
(i) must accept discipline and accommodate himself to prison life;
(ii) must accommodate himself to a reasonable organisation of that life;
(iii) must understand that prison life is a recognised form of punishment and he, as such, is part of that;
(iv) must understand that his loss of personal liberty, legally provided for, inevitably attaches to it, the abolition, albeit temporary, of some rights and the curtailment and restriction of others;
(v) must recognise that such rights, diminished or otherwise, have their legitimacy interfered with by reason of and pursuant to the needs and exigencies of the institutional environment in which that person is detained.”
I also said, as White J. had in Wolff v. McDonnell (1974) 418 U.S. 539, that there is no iron curtain between the Constitution and prisoners in this country and that convicted individuals continue to enjoy a number of constitutional rights, including the right of access to the courts. One can, of course, add that several other rights also continue to be enjoyed by such a person, including the right to life, to bodily integrity, the negative right not to be tortured or to suffer any inhuman or degrading treatment, the right, as Barrington J. said in The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82, to practice one’s religion and the right to natural and constitutional justice. This enumeration is indicative only and is not in any way exhaustive.
In Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April, 2001), no issue arose about necessity or proportionality and, accordingly, there was no need to describe the essential requirements of a governor so as to maintain security and good order, otherwise than by way of general words and expression.
Given that the right in issue in this case is constitutionally based, it can I think be taken that any permissible abolition, even for a limited period, or any interference, restriction or modification on that right should be strictly construed with the onus of proof being on he who asserts any such curtailment. In addition, the limitation should be no more than what is necessary or essential and must be proportionate to the lawful objective which it is designed to achieve. That a test of proportionality, where relevant, is now applied when considering constitutional rights is beyond doubt. In Heaney v. Ireland [1994] 3 I.R. 593 at p. 607 Costello J. described this principle as follows:-
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human
Rights (…) and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and
(c) be such that their effects on rights are proportional to the objective.”
This doctrine equally applies to executive decisions which affect personal rights, an example of which is Application of Gallagher (No. 2) [1996] 3 I.R. 10. It also obtained the unconditional endorsement of the Supreme Court in The Employment Equality Bill, 1996 [1997] 2 I.R. 321 as well as being specifically applied by that court in Murphy v. I.R.T.C. [1999] 1 I.R. 12. Therefore, in my opinion, it is quite appropriate to consider in this case whether the aforesaid policy of the prison service and the operation of rr. 59 and 63, as these have been applied to the applicant, are proportionate to the objectives of the respondent, namely the maintenance of security and good order.
Before I leave this question as to what in my view is the correct approach which this court should adopt to the issues in this case, it is interesting to note that the phraseology used by Costello J. in Heaney v. Ireland [1994] 3 I.R. 59, is remarkably similar to that used in para. 2 of each of articles 8 to 11, inclusive, of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Such articles in para. 1 thereof deal with a variety of rights and freedoms and then in para. 2 set out the basis for any interference or restriction by a public authority in their exercise. Every limitation must be related to an interest specified in the relevant paragraph, these of course being different for each article, but all such restrictions have the common requirement of having to be in accordance with law and of having to be necessary in a democratic society. Given the way in which the European Court of Human Rights has interpreted any permitted restrictions on the exercise of these rights and freedoms, and also given its application of the proportionality test, it seems to me that the caselaw in this jurisdiction as set forth above, is very similar to that emerging from the European Court, though of course for the purposes of this case the Convention is not yet part of our domestic law. Whilst therefore it is of importance to mention the similarity, I do not decide the case on the basis of the Convention.
As I understand the legal position, the power of the respondent in dealing with prisoners, including the applicant, within his prison, derives solely, at least for the purpose of this case, from the Prison Rules. It has never been suggested in the written documentation or through verbal submissions that the foundation for his authority lies elsewhere. I am, therefore, somewhat uncertain as to how, on his behalf, it can be validly asserted, as it has been, that he can make a decision on the applicant’s request on the basis of what has been described as a long standing policy of the Irish Prison Service. I know of no authority, and none has been advanced, for the proposition that this body has any legal entitlement to establish a practice, or policy, which, on its own, could be used to determine the position of a prisoner. It therefore seems to me that in all probability the argument advanced on behalf of the respondent was to the effect that he was lawfully operating rr. 59 and 63 by and through the implementation of this policy. In other words, the legal foundation commences with the power vested in the Minister for Justice pursuant to the Acts or Regulations mentioned in the preamble of the Prison Rules 1947, and having exercised this power, the immediate basis of authority is in fact the rules themselves. Accordingly, if this be correct it seems that this court must examine whether or not the relevant rules can be lawfully operated, through this long standing policy, in the manner in which the respondent did so in this case.
Rule 59 deals with communications between prisoners, their relatives and what are described as “respectable friends” either by visit or by letter. Paragraph (1) permits such communications in accordance with the Rules “subject to restrictions imposed for the maintenance of discipline and order in the prison”. This presumably is the foundation for the objections said to justify the respondent’s decisions. The subsequent sub-paragraphs of this rule then outline in what circumstances such communication may be permitted but, in both sub-paras. (2) and (4) the respondent is given a discretion to permit communications which otherwise do not fall within r. 59. Therefore, even if a prisoner could not show an affirmative entitlement within the express wording of the rule, nonetheless he is permitted by these said paragraphs to make application to the respondent seeking “special permission” to communicate.
Rule 63 deals with letters and in the first part of the rule confers on the respondent or a deputed officer of his, a right to read letters to and from a prisoner and if the contents are objectionable either to refuse to forward the letter or to erase the objectionable part”according to discretion”. He is then also given a discretion in communicating to or withholding from a prisoner “the contents of any letter” addressed to that person. He has to make a journal entry in respect of each letter which is withheld. Accordingly, it can be seen that in respect of all requests made in relation to both communications and letters, the respondent must operate rr. 59 and 63 and in so doing is given, what appears on the face of the Rules, to be a very considerable discretion. In neither rule, however, can I find any specific exclusion dealing with the media either by way of personal visits or by way of correspondence. In addition, I cannot find within the Prison Rules any provision which would entitle the respondent to adopt either the position of the Irish Prison Service (see above) or indeed any independent policy of his own would have the effect of enabling him, when dealing with the media, to refuse every prisoner, in all circumstances, every request, no matter what the purpose of the intended communication was. On that general basis alone it is very difficult to see how the stated position of the respondent could be upheld.
Even, however, if I was to assume that the policy of the Irish Prison Service was in effect the policy of the respondent himself and was somehow sustainable under rr. 59 and 63, I would then have to consider whether the operation of this blanket policy was lawful in the context of the discretion afforded to him under both rules.
In my view, it seems to be settled law that a person or body who has a discretion in making certain decisions can, by means of policy, guidelines or other indicative means, guide the implementation of that discretion. However, the existence of such guidelines cannot be such as to disable or deprive that person of meaningfully adjudicating on a particular issue and of exercising his discretion with regard to the decision ultimately arrived at. That this was so was confirmed by Kelly J. in Mishra v. Minister for Justice [1996] 1 I.R. 189 where at p. 205 he said:-
“In my view, there is nothing in law which forbids the Minister upon whom the discretionary power under s. 15 is conferred to guide the implementation of that discretion by means of a policy or set of rules. However, care must be taken to ensure that the application of this policy or rules does not disable the Minister from exercising her discretion in individual cases. In other words, the use of a policy or set of fixed rules must not fetter the discretion which is conferred by the Act.”
Whilst the decision-maker in Mishra v. Minister for Justice was the Minister for Justice who was exercising a discretion conferred by an Act of the Oireachtas, I see no reason why the same principle should not apply in this case to the respondent who is exercising a discretion conferred by a statutory rule and order made by a minister under powers conferred on the latter by the Oireachtas. If this be correct, it means however that the policy in question cannot have the effect of removing from the respondent the discretion conferred by rr. 59 and 63. Indeed, in a further passage at p. 206 of the report, Kelly J. in Mishra v. Minister for Justice issued this warning:-
“That is of the essence of the exercise of a true discretion as distinct from one which has become somewhat atrophied by reliance upon a policy or rules, which although useful and permissible, may, if care is not taken, have a stultifying effect.”
Ihave come to the clear conclusion that even if in principle the respondent was entitled to take into account a policy emanating from the Irish Prison Service, or to have his own particular policy, by reason of its very scope is fundamentally at variance with the correct operation of rr. 59 and 63 and is also fundamentally contrary to a prisoner’s entitlement to have a request made by him properly considered and evaluated by the said respondent. This policy, which is automatically triggered not by the nature of the request itself, had, by the identity of the addressee the effect of preventing and restraining the respondent from exercising any discretion under rr. 59 and 63, which discretion undoubtedly he has. Therefore, as the facts of this case amply demonstrate, the respondent does not concern himself with the purpose of such request, or with the underlying intention behind its making, or with its content or with what effect it might have on any of the matters said by him to justify this outright restriction. Therefore, his approach, in my opinion, violates both of the rules in question as well as the legal restraint on a decision maker, who is vested with a discretion, not to fetter his discretion. Accordingly, I have no doubt but that the decisions reached by the respondent on the 11th April and the 6th November, 2001, are invalid.
Remaining with this point, it seems to me to be very difficult to say, without some sort of inquiry, whether a particular journalist does or does not come within the phrase “respectable friends” in r. 59(1). It is, in my view, impossible to do so. Nor could he rule in or out, by way of granting an exception, under r. 59(2) and (4), a visit by a member of the media again without some type of investigation however informal. Equally so when implementing r. 63. On its face, this rule presupposes that every letter to or from a prisoner will be read by the respondent or a deputy assigned by him for that purpose. Only then can any form of censorship, let alone total refusal to forward or deliver a letter, be made and determined. But simply to say that there shall be no visits and no communication either way between the applicant and members of the media could not, in my view, be in accordance with either rr. 59 or 63, or be otherwise sustainable in law.
Because of the respondent’s approach, it inevitably follows that there is but one reason for his refusal, which reason applies to every request made by every prisoner irrespective of difference. This illustrates the unacceptable nature of the adopted practice. In addition, however, and as a consequence it also has the effect that every prisoner who is aware of this policy, as I am satisfied the applicant was, is also aware of the reasons for the inevitable refusal. Accordingly, through this wholly unsatisfactory process I do not think it can be said that there was a breach of the applicant’s constitutional rights in the deputy governor’s failure to explain fully the reasons to the applicant, even if that assertion was supported by the evidence.
It follows from the above that, in my opinion, this standard method of dealing with such a request is invalid for the reasons previously given and cannot be upheld.
The result in my view, therefore, is that the respondent is not entitled to apply the policy above mentioned and is not entitled to utilise it in the way in which he has. He must, in my opinion, give individual consideration to each request made by a prisoner either to write to or receive letters from members of the media and must likewise evaluate any application for a prison visit by members of the media. Only then can it be said that the rules have been operated in the manner envisaged by their provisions.
The above would be sufficient to dispose of this action but it would leave untouched any court expression on the more fundamental point. Because of this, the parties have asked me to give some consideration to what the position might be in circumstances where it was assumed that the prisoner’s requests were properly considered by the respondent but that his response thereto was to like effect which is, of course, that on grounds of security and prison discipline he was justified in coming to the conclusion that every request by every prisoner for communication, either by visit or letter, with the media should be refused. Though it is not strictly necessary, for the purposes of determining this case, to offer the views as sought and though I am reluctant to do so, nevertheless, in deference to the submissions as made, I think I should, at least in the general way, express some opinion on those points.
When deciding upon such a request the respondent is entitled, of course, to consider whether it should be refused or allowed and, if allowed, with or without conditions. This because the right is not absolute and can be regulated by law. Any such refusal or conditional acceptance must, however, be related to matters of security, discipline and good order within the prison. The concerns for any victim or their family simply do not arise in this case and I would offer no opinion on this ground as a potential justification. When making such a decision, I wish immediately to recognise the unique position of the respondent and acknowledge his expertise on the question of security and the like. With the result, and this should be clearly stated, that it is no function of this court to make that decision for him or to substitute its own views for those of the respondent. Nor do I seek to do so in any way in this case. However, his decision and the process by which it is reached must be in accordance with law. It cannot be otherwise. Therefore, if the above assessment of the legal requirements be correct it means:-
1. that when serving a prison sentence, lawfully imposed, a prisoner must suffer a diminution or compromise on the exercise of certain constitutional rights;
2. the rights so affected, the “affected rights” for the duration of the sentence, are in the first instance his right to liberty and secondly certain other rights (i) which are affected by the loss of this right and (ii) which are consequential on the convicted prisoner having to serve his sentence in a place of detention, namely a prison;
3. these “affected rights” are not, in my view, capable of exhaustive definition but will depend on the circumstances of each case;
4. to be lawful, any limitation, either complete or partial, or the exercise of these “affected rights” must have as their objective:-
(i) the incarceration of the prisoner so as to serve his sentence; and
(ii) the maintenance of security, discipline and good order within the prison; these being the basis of the justification advanced in this case;
5. the objective underpinning the restriction must be of such significance or value in a democratic society so as to warrant the position of overriding a right which is constitutionally based;
6. the interference on restriction:-
(i) must be rationally connected to the said objective and must not be arbitrary, unfair or based on irrational considerations;
(ii) must be necessary or essential in order to achieve the legitimate aim to which it is addressed;
(iii) must be not more extensive than the minimum required to achieve its intended aim; and
(iv) must otherwise be proportionate to that objective;
7. each application by a prisoner must be individually considered by the respondent or his deputed officer and must be decided upon by reference to the above criteria, which is general in character and outline;
8. the respondent, when applying rr. 59 and 63, is vested with a discretion derived from statute, and as such, while he may have regard to a policy or guidelines, he cannot rely upon either in such a way as to deprive him or otherwise fetter the exercise of this discretion.
If the above summary accurately represents the position, then the commencement point in any consideration of the issues which arise in this case is whether or not the respondent can restrict, either partially or fully, the applicant’s right to communicate with the media. In my view, there is no doubt whatsoever but that this right can be the subject matter of limitation, which can have varying consequences ranging from minimal interference to outright prohibition. What will legally justify any form of restriction, up to a complete ban, will have to depend on the circumstances of each case, though in my view any decision which is or is equivalent to a total denial must surely be capable of justification only in acute circumstances. Do such circumstances exist in this case? Or to put it more formally, is a complete bar necessary so as to enable the respondent to maintain discipline and good order within his prison and is such a ban proportionate to the attainment of these objectives, the legitimacy of which is not denied?
In my humble view, the answer is no. The only evidence advanced on behalf of the respondent is that set forth in para. 7 of the affidavit of the deputy governor which is quoted above. Such evidence constitutes no more than broad propositions of potential disruption without any details being offered by way of specific security problems which either have previously occurred or, as a matter of probability, would arise either from correspondence or from face to face meetings. These undefined potentialities, in my view, cannot be allowed to undermine substantially the constitutional rights of the applicant. Accordingly, I do not believe that the respondent has satisfied this court as to a necessity for such a blanket ban which, in my view, is entirely disproportionate to the penal objective which he seeks to maintain. This objective is one which I think is properly legitimate but, it is the means adopted to achieve its results which, in my view, are unlawful. Therefore, I remain of the opinion that this ban cannot be justified.
This conclusion is not, I believe, in any way invalidated by the acknowledged fact that, indirectly through his family, his friends and legal advisers the applicant can transmit information to the media. This, in my view, is no substitute for personal and direct contact. Indeed, there is no suggestion whatsoever that this, admittedly secondary, method of communication has ever had a negative effect on prison security or effective discipline. If contact once removed is so benign, it is all the more difficult to see how the present request could lead to such unmanageable consequences as the respondent seems to envisage.
Nor is this view disturbed by the respondent’s submission that there is no sufficient evidence in this case, unlike that which was produced in R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115, to demonstrate the probative value of the investigative media in the area of alleged miscarriage of justice. If the extensive documentary evidence produced in that case is not readily available in this jurisdiction, it is perhaps because in some way the number of such allegations in this country, at least to date, have not been as great as those which have emerged in the neighbouring jurisdiction. However, by passing the Criminal Procedure Act 1993, the Oireachtas has recognised the potentiality for such cases and indeed the activation of its provisions since then have fully justified this statutory innovation. It would be an exercise in self deception to believe that our criminal institutions are immune from such miscarriages. In my humble view, the involvement of the media and its capacity in this regard cannot, I think, be doubted.
Given this view, it would not, I think, be proper to further offer any opinion on what interference or restriction the respondent might be lawfully entitled to impose if and when he should reconsider any request in accordance with the aforesaid principles. It is not the function of this court to lay out what restrictions or limitations, if any, might be justified; rather its role is to ensure that the decision-maker approaches his task and performs his role in accordance with the correct legal principles. I would, therefore, not propose to offer any further comment on this particular matter, save as to say, that the conditions which the applicant submits to are of considerable importance and are, of course, available for the respondent’s consideration.
The conclusions above reached are not, in my view, in any way disturbed by the decision of Costello J. in Kearney v. Minister for Justice [1986] I.R. 116. That case had as its main focus the constitutionality of r. 63, but quite significantly the judge’s decision was, I believe, heavily influenced by the manner in which the relevant governor interpreted and thus applied this rule to the correspondence which Mr. Kearney put in issue. By way of uncontroverted evidence, the court was satisfied that in respect of incoming mail the governor understood the word “objectionable” in r. 63 as referring to a matter which could endanger security but to no other matter. With regard to outgoing mail, the word was given a slightly more extensive meaning, this time to include and was applied again to matters which could endanger security but also to matters which could be said to infringe the privacy of other prisoners. In addition, where the letters in question were to or from a prisoner’s solicitor, the practice was to read the correspondence only to the extent necessary to ensure that it related to legal affairs and even then, the staff in question were obliged to treat as confidential all information obtained as a result of this reading. These parameters within which r. 63 was operated were very specific and afforded to a prisoner what Costello J. obviously felt was a significant degree of safeguard.
It can, therefore, I think be immediately seen that as between Kearney v. Minister for Justice [1986] I.R. 116 and the instant proceedings, the former was in reality concerned with a potential restriction or interference with the exercise of the right in question whereas in this case one is confronted with its total and absolute abolition. What might be a perfectly acceptable justification to confer the status of legality on a limitation may be entirely ineffectual to sustain an abolition, in particular one which permits of no exception, ever, irrespective of the circumstances. Indeed, even within Kearney v. Minister for Justice itself, there is no guarantee that the conclusion would have been the same if the decision had to be taken against a different or variable background.
In addition, Mr. Kearney of course also sought to have r. 63 declared invalid as being unconstitutional. No such claim is made in the present case. Accordingly, that decision does not in my view determine the issues in this case. In so saying I am conscious of the fact that in Holland v. Minister for Justice (Unreported, Supreme Court, 9th July, 1993) the Supreme Court in an ex tempore judgment approved of the decision in Kearney v. Minister for Justice [1986] I.R. 116 and referred to”security and good discipline” as constituting “very good and strong justification” for r. 63. However, it should also be noted that Finlay C.J. accepted the view that prima facie the letters under scrutiny in Holland v. Minister for Justice might not fall into that category, thereby at least implying that some assessment of their content must be made before determining what level of restriction might be appropriate.
And finally the unique position of the media, briefly referred to above and again later referred to, was not a feature in that case.
In the present context the respondent also referred to Breathnach v. Ireland [2001] 3 I.R. 230, a decision of the Supreme Court on an appeal taken by the State against a declaration made by the High Court (Quirke J.) that “the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and fails to vindicate the right conferred upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law”. In allowing the appeal, through the judgments of Keane C.J. and Denham J., the Supreme Court referred to the legislative provisions under which a person is entitled to vote in this jurisdiction and to the absence in Breathnach v. Ireland of any constitutional challenge to such measures. The court also considered its earlier decision in Draper v. The Attorney General [1984] I.R. 277 in which the constitutionality of the then relevant provisions of the Electoral Acts was upheld even though no provision was made for the plaintiff to vote, otherwise than by attending at a polling station, which by reason of his physical disability he was unable to do. In addition, Murray and Murray v. Ireland [1991] I.L.R.M. 465 was referred to as correctly deciding that the constitutional rights of the plaintiff, who were husband and wife both serving long sentences of imprisonment, were not infringed by the respondent’s refusal to allow them to leave prison from time to time in order to beget children.
In my respectful view, I would distinguish Breathnach v. Ireland [2001] 3 I.R. 230 from the instant proceedings in that the background statutory provisions and the factual events and circumstances which establish the foundation of the court’s decision in the former case, are entirely separate from those which apply in the present action. Indeed, there is no statutory bar which creates an injunction preventing a prisoner from lawfully communicating with the media or from receiving visits by that agency. I, therefore, do not think that Breathnach v. Ireland governs this case.
Up to now I have not referred to R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115, in any detail, but the decision of the House of Lords in that case definitively established what the legal position is in England, in respect of issues very similar to those which form the subject matter of this case. In that case there were two prisoners who were serving life sentence for murder. Both claimed that they had been victims of a miscarriage of justice. In order to advance their desire to have their respective cases reopened, they sought permission to have oral interviews with journalists. The relevant prison authorities refused to permit any such visits unless the journalists in question were prepared to sign written undertakings not to publish any part of the resulting interviews. The journalists declined to so do. As a result, both prisoners in question sought by way of judicial review to challenge the lawfulness of that policy. They succeeded in the High Court but that decision was reversed in the Court of Appeal. In the House of Lords several opinions were delivered by their Lordships who unanimously allowed both appeals and made appropriate declarations.
Whilst the Prison Act 1952 and the governing Regulations made thereunder are different from the provisions of the Prison Rules 1947, and whilst the House of Lords made reference to article 10 of the European Convention, nevertheless there are certain expressions of opinion, in particular those from Lord Steyn, with which I would respectfully agree and which I find wholly persuasive. In particular, I readily endorse the following views:-
(a) That in a democracy the right of freedom of expression “is the primary right: without it an effective rule of law is not possible” (see p. 125 of the report).
(b) That “freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’: Abrams v. United States (1919) 250 U.S. 616, 630 per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett Constitutional Law (3rd ed., 1996) pp. 1078 to 1086. It is this last interest which is engaged in the present case” (see p. 126).
(c) “The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner’s right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present case is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more fundamental function which free speech might fulfil” (see p. 127 of the report).
In addition to these observations which I firmly believe are of equal validity in this jurisdiction (notwithstanding the difference in the factual backgrounds as between R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115 and the present case), Lord Steyn also went on to review the evidence of the role which is played by investigative journalism in cases allegedly involving a miscarriage of justice. He was in no doubt whatsoever about the value of this mechanism by which prisoners can at least explore, if not further, their individual grievances. Again, whilst the evidence in the present case is significantly less detailed than that which presented itself before their Lordships, nevertheless I believe that this court is entitled to take the view that such an agency as investigative journalism is can be a productive and probative vehicle in the overall administration of justice.
I would, therefore, respectfully adopt the aforesaid views of Lord Steyn.
In conclusion, for the reasons given, I would set aside the relevant decisions of the respondent.
Independent Newspapers (Ireland) Ltd v Anderson
[2006] IEHC 62
Mr. Justice Clarke1. Introduction
2
2 1.1 These proceedings relate to an order made by the respondent District Judge in the course of a criminal prosecution brought by and on behalf of the second named notice party (“The Director”). In those criminal proceedings the first named notice party is charged with the possession of images of child pornography contrary to the Child Trafficking and Pornography Act 1998.
3
3 1.2 On 4th July, 2003, when the case was first brought before the respondent District Judge, the first named notice party was remanded on bail and the District Judge further ordered that no publication of the identity of the first named notice party was to be made by the media and further that no information tending to identify the first named notice party was to be published by the media (“the restrictive orders”).
4
4 1.3 Subsequent to the making of the restrictive orders a hearing was arranged whereby submissions on behalf of the applicants could be made to the respondent District Judge seeking that the restrictive orders should be discharged. That hearing took place on 12th September, 2003. The respondent District Judge reserved his decision until 8th October, 2003 and on that date refused to vary his orders for the reasons set out in a transcript of his decision on that date (“the discharge refusal”).
5
5 1.4 The applicants are major publishers in the print and broadcast media and had joined together for the purposes of making the application to discharge to which I have referred. The applicants bring these proceedings before this court for the purposes of seeking an order quashing the restrictive orders of the respondent District Judge together with certain alternative orders to the like effect. Leave to seek judicial review was given by this court (O’Neill J.) on the 15th December, 2003. The first named notice party opposed the application. The Director adopted a neutral position.
2. The Facts
2
2 2.1 The first named notice party is a clergyman in the Church of Ireland. It would appear that in January 2002 his home and the church in which he worked were searched and a certain amount of material, principally computer equipment, was seized. A number of articles appeared in the media between that time and July 2003 when the first named notice party was charged with the offences to which I have referred. Articles appeared in the Star newspaper on 26th January, 2002 and 26th June, 2003. Furthermore articles appeared in the Phoenix magazine on 1st February, 2002 and 21st June, 2002. The articles concerned intimated that charges of the type ultimately brought were to be brought against an unnamed person. However details are given which would at least go some way towards identifying the first named notice party as the individual intended to be charged or, at a minimum, identifying the person to be charged as being one of a small group of persons of whom the first named notice party was one. In addition one of the articles in the Star newspaper appears to suggest that other charges involving indecent assault were to be brought against the same unnamed individual. No such charges have, in fact, been brought.
3
3 2.2 On 4th July, 2003 when the proceedings against the first named notice party were first before the District Court sitting in Portlaoise it would appear that there was a very significant media presence. It is contended by the first named notice party that at least some members of the media in attendance acted in a hostile and aggressive manner.
4
4 2.3 In all those circumstances it is said that the first named notice party feared that he would be the subject of grossly prejudicial, unfair and inaccurate media reporting from that time onwards. In those circumstances an application was made by counsel on behalf of the first named notice party to the respondent District Judge based upon the reporting which had taken place prior to the bringing of the charges and to which I have referred above.
5
5 2.4 While there was, in the course of the exchange of affidavits in these proceedings, some slight confusion as to the role played by the State Solicitor acting on behalf of the prosecution on the occasion in question, it is now clear, and I am satisfied, that that State Solicitor concerned confined himself to assisting the respondent District Judge by informing him of the principles applicable to the making of restrictive orders and, in particular, accurately informed the respondent District Judge that there was a jurisdiction to make such an order provided that the District Judge was satisfied that it was necessary to ensure a fair trial.
6
6 2.5 On the basis of the evidence before me I am also satisfied that the respondent District Judge expressed himself, on the 4th July, 2003, as being satisfied that it was necessary to make the orders sought in order to ensure a fair trial. He then proceeded to make the restrictive orders.
7
7 2.6 As pointed out above an application was then made on behalf of the applicants to discharge the restrictive orders which application was ruled on, on 8th October, 2003. From the transcript of that ruling it appears that, on that occasion, the respondent District Judge decided that:-
1
The proceedings on 4th July, 2003 did not amount to a trial process and that, accordingly, the principles set out by the Supreme Court in The Irish Times Limited and Others v. Ireland [1998] 1 I.R. 359 did not apply;
2
The first named notice party had a right to fair procedures, a right to face his accuser, a right to know the case made against him and the right to a good name, and these would be threatened if his identity or information tending to disclose his identity was published; and
3
The restrictive orders of the respondent District Judge of 4th July, 2003 were final orders and thus were not subject to being varied by the respondent District Judge other than within the confines of the same sitting of the District Court on 4th July, 2003.
In the light of those facts it is necessary to consider the legal principles applicable.
3. The Legal Principles
2
2 3.1 Article 34.1 of Bunreacht na hÉireann 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”.
3
3 3.2 In Re R Limited [1989] I.R. 126 the Supreme Court took the view that the provisions of Article 34.1 required that justice must be administered in public save where there was an express legislative exception to that rule. The judgment went on to note that any such express legislative exception should be strictly construed. In particular where the legislative prohibition was not absolute, but conferred a discretion on the court, that discretion should be only exercised where it could be shown:-
“That a public hearing of the whole or of that part of the proceedings which it is sought to have heard otherwise than in a public court, would fall short of doing justice”.
4
4 3.3 However in Irish Times Limited the Supreme Court recognised that, in addition to those cases which were covered by an express statutory provision, there were certain other limited circumstances where a court had a discretion to limit contemporaneous press reporting of a trial.
In the course of his judgment in Irish Times Limited O’Flaherty J. said, at p. 396:-
“The press are entitled to report, and the public to know, that the administration of justice is being conducted fairly and properly. This is not to satisfy any idle curiosity of the public. The public have both a right and responsibility to be kept informed of what happens in our courts. Since the proper administration of justice is of concern to everyone in the State, the press has a solemn duty to assure the public by fair, truthful and contemporaneous reporting of court proceedings whether or not justice is being administered in such a manner as to command the respect and the informed support of the public. As it was put by Fitzgerald J. in an Irish case of the last century, one of the many securities for the due administration of justice is “the great security of publicity”: R v. Gray (1865) 10 Cox C.C. 184 at p. 193.
In my judgment the blanket ban imposed by the trial judge went too far. It was not justified. It was in order to prevent what was only a possibility of harm though made, I have no doubt, from the best of motives. The risk that there will be some distortion in the reporting of cases from time to time must be run. The administration of justice must be neither hidden or silenced to eliminate such a possibility. The light must always be allowed shine on the administration of justice; that is the best guarantee for the survival of the fundamental freedoms of the people of any country”.
At p. 389 O’Flaherty J. went on to hold that:-
“Trial judges have tended on occasion to adopt an undue tenderness towards juries in this regard. If there is an inaccuracy as regards pending or current proceedings, or a slant is put on any case that is thought not to be fair to one party or another, then in most cases this can be put right by the trial judge giving an appropriate direction to the jury either in advance of or in the course of the case as required”.
2
2 3.4 Hamilton C.J., agreeing with the above observations, stated that he was:-
“Satisfied that there was no evidence before the learned Circuit Court judge which would justify him in holding that there was a real risk of an unfair trial if contemporaneous reporting of the trial was permitted. He was not entitled to assume that such reporting would be other than fair and accurate”.
3
3 3.5 Therefore it would appear that orders restricting the reporting of proceedings in court can only be made where:-
1
There is an express legislative provision to that effect; and
2
In the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or
3
In the event that there is no express legislative provision the court is satisfied that
(a) there is a real risk of an unfair trial if the order is not made and
(b) the damage which would result from not making an order would not be capable of being remedied by the trial judge either by appropriate directions to the jury or otherwise.
4
4 3.6 Against those general principles it is necessary to consider the facts of the current case to which I now turn. For reasons which will become apparent it seems appropriate to consider first the reasoned decision of the respondent District Judge, delivered having heard argument from both sides.
4. Application of Legal Principles to the discharge refusal
2
2 4.1 The first question that needs to be addressed is the precise basis upon which the applicants are now prevented from publishing the identity of the first named notice party or material tending to identify him.
3
3 4.2 This issue is somewhat complicated by the fact that such limited evidence as there is concerning the basis on which the respondent District Judge made the original restrictive orders on 4th July seems to suggest that he, at least in general terms, was informed of the basic principles set out in Irish Times Limited and, it would appear, came to the view that that test was met.
4
4 4.3 However the reasons set out in his recorded judgment of the 8th October, 2003 do not appear to suggest that he was of the view that the Irish Times Limited principles applied. On the contrary the respondent District Judge would appear to have taken the view that those principles did not apply on the basis that the hearing on 4th July did not amount to part of the trial process. Because that decision was arrived at after hearing arguments from both sides it seems to me that I should first review the reasons given in that judgment for refusing to discharge the restrictive orders.
5
5 4.4 In respect of that aspect of the respondent District Judge’s view which found the Irish Times Limited principles did not apply, I am satisfied that the respondent was in error. Firstly it should be made clear that the provisions of Article 34.1 apply in equal measure to civil and criminal proceedings. The requirement that justice be administered in public applies, therefore, equally to any occasion when justice is being administered in the courts.
6
6 4.5 It is illustrative that in Re R. Limited was a hearing under s. 205 of the Companies Act 1963. Similar considerations arose in relation to proceedings under that section in Irish Press plc v. Ingersoll Irish Publications Limited [1994] I.R. 179. Other civil and judicial review proceedings were the subject of Roe v. BTSB [1996] 3 I.R. 67, Salinas de Gortari v. Smithwick [1999] 4 I.R. 223 and Re Ansbacher (Caymen) Limited [2002] 2 I.R. 517. It is manifestly clear that the strict limitation on restrictions on reporting imposed by Article 34.1 are, and have been, applied in respect of a whole range of different types of proceedings.
7
7 4.6 There is also ample authority for the proposition that a pre-trial hearing at which an accused person is remanded on bail amounts to the administration of justice as that term is used in the Constitution. The State (Lynch) v. Ballagh [1986] I.R. 203 and Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421.
In Glavin Keane J. concluded at p. 439 that:-
“For so long as the Oireachtas considers it essential that persons accused of serious crime should be afforded the important protection of a preliminary hearing, both the prosecutor and the accused are entitled as a matter of constitutional right under Article 34 to a determination of the justicable controversy between them in a court established by law by a judge appointed in the manner provided by the Constitution”.
2
2 4.7 While the hearing before the respondent District Judge on 4th July was not, of course, a preliminary hearing of the type that Keane J. spoke of in Glavin it is clear that the question of bail was addressed. Walsh J. in State (Lynch) v. Ballagh classified the granting of bail as a judicial act and the comments of Keane J. in Glavin are therefore applicable.
3
3 4.8 In fairness it should also be noted that counsel for the first named notice party did not contest that the hearing on 4th July involved the administration of justice.
4
4 4.9 In all those circumstances it seems to me that Article 34.1 clearly applies to a hearing of the type which was conducted by the respondent District Judge on 4th July so that no restrictions were permitted to be imposed on the reporting on that hearing save in accordance with the proper exercise of a statutory jurisdiction or in accordance with the Irish Times Limited principles.
5. The Rights Properly taken into Account
2
2 5.1 The next matter that needs to be considered in detail is the question as to the precise rights of the applicant which are to be properly taken into account in considering whether to make an order restricting the reporting of the administration of justice. In Re Ansbacher (Caymen) Limited, in this court, McCracken J. expressly declined to hold that the undoubted right to privacy guaranteed by Article 40 or the right to a good name pursuant to Article 40.3.2 could give rise to an entitlement to anonymity in a court case. Such an entitlement was not, in the view of McCracken J. a practicable way for the State to defend and vindicate those rights. The only harmonious construction of those personal rights was, in the view of the court, that their exercise did not interfere with other constitutional requirements which were inserted for the public good. In those circumstances it was held that there was no harmonious construction of the Constitution whereby the applicants personal rights could be considered to give rise to any special or limited case prescribed by law as an exception to Article 34.1. In coming to that view McCracken J. placed reliance on Roe, Irish Times Limited and Salinas de Gortari. Similarly Kearns J. in Independent Star Limited v. Judge O’Connor [2002] 4 I.R. 166 at p. 176 noted that policy reasons cannot, as such, justify the imposition of a reporting restriction.
3
3 5.2 It seems to me clear, therefore, that in the absence of an express statutory limitation on reporting, the general constitutional discretion identified in the Irish Times Limited only applies to cases where it can properly be said, in accordance with the principles set out in that case, that the accused’s right to a fair trial may require the reporting restrictions. The undoubted effect which the public knowledge of the existence of criminal proceedings against an individual may have on certain other rights of such individual is not, on the basis of those authorities, a justification for departing from the clear constitutional imperative specified in Article 34.1 to the effect that justice must be administered in public.
4
4 5.3 To the extent, therefore, that the respondent District Judge would appear, in his judgment of 8th October, to have taken into account the fact that a public knowledge of the existence of the criminal charges against the first named notice party might affect his right to his good name (particularly if the proceedings never came to trial) he was clearly in error.
6. Jurisdiction to Vary
2
2 6.1 In Irish Times Limited at p. 400, Denham J. noted that representatives of the media were entitled to be heard in relation to the making of orders which would restrict the entitlement of the media generally to report on the administration of justice in court. The practical implementation of such an entitlement has the potential to give rise to some difficulty.
3
3 6.2 There will be many cases where there will be little point in imposing a reporting restriction after the event. Matters once reported upon cannot be unreported. It seems to me that the procedure adopted both in this case, and in other cases, whereby the judge concerned (having been persuaded that it is an appropriate case to impose reporting restrictions) makes an initial order imposing such restrictions without hearing representatives of the media but affords such representatives an opportunity to be heard thereafter meets the requirements identified by Denham J. in Irish Times Limited to afford media representatives an opportunity to be heard.
4
4 6.3 It does, however, follow that a court imposing a restrictive order in the absence of media representation is under an obligation to afford such representatives a reasonable and timely opportunity to be heard and, furthermore, that the court, having afforded such opportunity, must be entitled to come to a fresh view as to the appropriateness or otherwise of making the order concerned. In that regard it seems to me that such a situation would not differ significantly from a case in which the court, on the basis of hearing one side only, is persuaded to make an interim order for the purposes of preserving a situation, but is then required, at a later interlocutory stage, with all relevant parties having been given the opportunity to be heard on notice, to give a fresh consideration as to whether the interim order should continue.
5
5 6.4 There is nothing, in my view, inappropriate about a court making, in an appropriate case, an order on foot of the jurisdiction identified in Irish Times Limited without giving representatives of the media an opportunity to be heard, provided that the court is prepared to permit, at an early stage, the hearing of an application by relevant media organisations to discharge or vary such order and subject to the obligation of the court to consider the merits of the making of such order afresh in the event that such an application is brought.
6
6 6.5 As a process such as the above is necessary to ensure compliance with constitutional objectives it does not seem to me that any rule (such as that identified in Kennelly v. Cronin [2002] 4 I.R. 292) applicable generally to the varying of orders of the District Court could have any application in a case such as this.
7
7 6.6 Therefore I am also satisfied that the respondent District Court Judge was in error in coming to the view that he did not have a jurisdiction to vary.
8
8 6.7 It would, therefore, seem that each of the reasons given by the respondent District Judge on the 8th October were incorrect. He had a jurisdiction to vary. The Irish Times Limited principles were applicable. He was not entitled to take into the account the right to a good name.
9
9 6.8 However having regard to the fact that it would appear that the respondent District Judge did, at least to a limited extent, address the appropriate principles on 4th July and to the extent that there is, to some extent, at least a reference to the general principles applicable to a fair trial in the course of his judgment on 8th October, it seems to me that I should go on to consider whether it would have been open to the respondent District Judge to come to the view that the restrictions were necessary to secure a fair trial.
7. Application of Principles to the Restrictive Orders
2
2 7.1 This issue comes down to a question of whether, on the assumption that the respondent District Judge came to the view that orders which he made were necessary to secure a fair trial in accordance with Irish Times Limited principles, there was sufficient evidence to entitle him to come to such a view. That such evidence is a necessary pre-requisite to the making of the order can be seen from the passage of the judgment of Hamilton C.J. in the Irish Times Limited quoted above.
3
3 7.2 In this context it is important to note that in all of the identified not statutory categories of cases where reporting restrictions apply in the context of the criminal process it is the evidence given rather than the identity of the accused which is restricted from publication. The reasoning behind the relevant restrictions are clear.
4
4 7.3 In certain cases evidence will properly be given either at a preliminary stage or in the course of a trial, where a subsequent trial of the same or other individuals is contemplated, and where that evidence would not be material or admissible at a future trial. For example evidence of previous convictions may be highly relevant in a bail application but would not be admissible at the subsequent trial.
5
5 7.4 Similarly the very point of the trial of an issue as to whether an admission by an accused is admissible in evidence is to determine whether the jury should hear that evidence. The possibility that the alleged admission by the accused will not be admitted in evidence needs to be taken into account and in those circumstances it is clearly inappropriate that there should be any publicity given to evidence of the alleged admission, which evidence may ultimately be excluded from the substantive trial. The very purpose of the court directing, in an appropriate case, that two accused should be separately tried for the same or similar offences is because of the fact that evidence admissible against one may not be admissible against another and the view may be taken that excessive prejudice might be caused by a single trial. In those circumstances a reporting restriction may properly prevent publicity being given to evidence at the earlier trial which will not be presented at the second trial.
6
6 7.5 Without necessarily coming to the view that there could be no circumstances in which an order could be made under the Irish Times Limited principles directed solely at protecting the anonymity of an accused, the starting point of any consideration of this issue must be that all the known forms of such non statutory reporting restrictions are directed towards preventing publicity being given to evidence which might be properly placed before a court on one occasion but might not be admissible at a subsequent trial.
7
7 7.6 While there are, undoubtedly, a number of statutory restrictions on the reporting of the identity of accused persons (none of which are applicable on the facts of this case) it seems clear that all such restrictions are designed to protect the identity of victims rather than being designed to ensure a fair trial.
8
8 7.7 On the facts of this case there was evidence of adverse pre-charge publicity by two media organisations involving four separate publications. While there may well be legitimate questions to be asked as to how the relevant information came into the hands of the media organisations concerned and as to whether it may not be likely that some state agency must have been involved to some extent in facilitating that situation, I am persuaded that counsel for the applicants is correct when he says that a limited amount of pre-charge publicity by no more than two media organisations could not give rise to an assumption that general adverse post charge publicity will take place much of which would, if it were to occur, be in breach of the sub judice rule.
9
9 7.8 I am therefore satisfied that, as in the Irish Times Limited, there was insufficient evidence before the respondent District Judge which would have entitled him to take the view that permitting the identity of the first named respondent, as the person charged with the offences before the court, to be published, would lead to a real risk of an unfair trial such as could not be remedied by appropriate action taken by the trial judge.
10
10 7.9 If any restrictive order is justified under Irish Times Limited principles then, in order to amount to a justified interference with Article 34.1, such an order must, in my view, comply with principles analogous to those which have been developed under the doctrine of proportionality.
Such an order should, therefore:-
2
(i) be designed only to restrict the publication of material which, it is adjudged, would cause serious prejudice leading to a real risk to a fair trial; and
3
(ii) should do so in a manner which interferes as little as possible with the entitlement to report fully on all aspects of the administration of justice; and
4
(iii) should do so in a way which is proportionate.
2
2 7.10 Against such a test it seems to me that the restrictive orders in this case fail. The orders seem more designed to protect the anonymity of the first named notice party rather than preventing the publication of any material that would not be admissible at a trial and where publication might, therefore, be prejudicial to such trial. The orders of themselves do not prevent the publication of material which makes any accusations against the first named notice party but which do not specify that he stands charged with offences now before the courts. The jury at the trial will, of course, know the identity of the accused.
3
3 7.11 In those circumstances it would seem to me that the making of the restrictive orders on 4th July and, also and in particular, the refusal to revoke on 8th October was in excess of jurisdiction and should be quashed.
4
4 7.12 Finally I have to consider a technical question as to the precise order which is currently in force and binding. Since the events which have been described above the first named notice party has been returned for trial to the Circuit Court. It was, at one stage, suggested that the Circuit Judge had made a separate order restricting reporting. However I am now satisfied on the evidence that the only matter dealt with by the learned Circuit Judge was to indicate that the order of the respondent District Judge, which is under challenge in this case, was to continue pending trial. In those circumstances I am satisfied that the current order which restricts publication of the identity of the first named notice party is the order of the respondent District Judge. In those circumstances once such order is quashed, there will be no valid order in being which interferes with the ordinary fair and proper reporting of any aspect of the administration of justice in respect of the criminal charges still pending against the first named notice party.
Reynolds v Malocco
[1999] 1 ILRM 289
Mr Justice KellyTHE LEGAL PRINCIPLES APPLICABLE
The Judicature (Ireland) Act 1877 coolers jurisdiction on the High Court to grant injunctions in all cases where it appears just and convenient to do so, and on such terms as the Court sees fit. Order 50 Rule 6 of the Rules of the Superior Courts authorises the grant of interlacutory injunctions.
The exercise of this power by the Court has been the subject of numerous Court decisions and it is possible to divine from these the relevant principles which the Court applies in deciding to grant or withhold interlocutory injunctive relief.
In an ordinary case the Court considers whether the Plaintiff has raised a fair or serious issue to be determined at the trial of the action. If it considers that such a question has been raised it goes on to decide whether damages would adequately compensate the Plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy it then proceeds to consider whether on the balance of convenience an injunction should be granted or not. (See the decision of the Supreme Court in Campus Oil v. Minister for Industry and Commerce (No 2) [1990] I.R. 88 and the decision of the House of Lords in American Cyanamid co v. Ethicon Limited ( 1975 AC 396).
These principles have a wide but not a universal application. In a small number of cases special rules which are not encompassed by these principles apply. One such type of case arises in the field of contracts of employment. Normally Courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such a contract or would perpetuate a relationship based on mutual trust which no longer exists. Another exception to the general principles which I have already described arises in cases of the type in suit.
A Plaintiff in an action such as this, in order to obtain an interlocutory injunction must show not merely that he has raised a serious issue concerning the words complained of but that there is no doubt but that they are defamatory. Furthermore, if the Defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused.
The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described as one “of a delicate nature” which “ought only to be exercised in the clearest cases” (see the judgment of Lord Esher M.R. in Coulson v. Coulson (1887) 3TIR 846).
That approach was expressly approved by the Supreme Court in Sinclair v. Gogarty ( 1937 IR 377). In the course of his judgment Sulivan C.J. with whom all four other members of the Court agreed said:-
“The principle upon which the Court should act in considering such applications was stated by Lord Esher M.R. in Coulson v. Coulson, and his statement of the principle was approved of and adopted by the Court of Appeal in Bonnard v. Perryman (1891) 2 Ch. 269. The principle is this that an interlocutory injunction should only he granted in the clearest cases where any jury would say that the matter complained of was libellours, and where if the jury did not so find the Court would set aside the verdict as unreasonable”.
The reason for the reluctance on the part of the Courts to grant interlocutory injunctions in cases of this sort is grounded in the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bannard v. Perryman where Lord Coleridge said:-
“The importance of leaving free speech unfetered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions”.
The sentiments expressed by Lord Coleridge have been needed by the Courts and nowadays are fortified by the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Lord Coleridge went on to say:-
“The right of free speech is one which it is for the public interest that individuals should possess and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged livel. Unless it is clear that an alleged libel is untrue, it is not clear that any right as all has been infringed ……”
It is therefore clear that the first matter which I must enquire into is whether or not the Plaintiff’s complaints are made out with the degree of clarity required so as to enable me to conclude that the words complained of are undoubtedly defamatory.
If I so conclude in favour of the Plaintiff, I then have to consider whether, in the light of the Defendant’s stated intention to plead justification concerning the drug dealing allegation, an injunction can be granted at all.
The reason why I have to consider this aspect of the matter arises because of the decision in Bonnard v. Perryman. As I have already pointed out, the decision in that case was approved by the Supreme Court in Sinclair v. Gogarty. The rule established by that decision is that where a defendant in a libel action intends to plead justification, a Court will not grant an interlocutory injunction to restrain publication of the statement complained of.
The question then arises as to whether a hold statement of intent to plead justification is sufficient to debar a plaintiff who might otherwise be entitled to an injunction from such relief. If it is, then the Plaintiff’s application in respect to the drug dealing activities must be doomed to failure. Counsel on behalf of the Plaintiff urges me not to adopt this approach but rather to conduct an examination of the Defendant’s evidence so as to establish whether the plea of justification has any substance or prospect of success.
There appear to be two conflicting decisions in this jurisdiction as to the proper approach to take on this topic.
On the one hand there is the decision in Gallogher v. Tuohy. (1924) 58 ILTR 134 where the matter complained of consisted of a circular containing defamatroy statements concerning the plaintiff in his business capacity. Murnaghan J. stated:-
“The question I have to decide is whether an Order should be made restraining the defendants from repeating statements which they allege to be true and provable. Against the granting of such an Order the authority of Bonnard v. Perryman has been cited to me, and that authority has not been controverted by the plaintiff. The effect of that decision seems to be reasonably clear. The Court should not readily restrain the publication of any matter which is not obviously a libel. I would have no difficulty at all in deciding that the statement was defamatory but for the plea of justification. That plea having been raised, it seems to me that I cannot prejudge the issue and decide that the plea of justification is erroneours. That would be the effect of the injunction sought”.
On the other hand, the decision of the Supreme Court in Culten v. Stanley (1926) IR 73 demonstrates a different approach. There the Plaintiff sought an interlocutory injunction to restrain the publication of statements by the Defendants to the effect that he had acted as “scab” on the occasion of a bakers’ strike. The Plaintiff deposed that the statements were absolutely false and that be believed the publication was for the purpose of prejuciding his position as a candidate in an election. One of the Defendants submitted an Affidavit stating that all the allegations were true, and that he would prove this at trial. The Supreme Court nonecheless granted an interlocutory injunction. O’Connor 3 referred to the argument of the Defendant to the effect that the rule in Bonnard v. Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised. He said
“I do not think that the Court of Appeal intended so lay down a rule which should be rigidly applied to every case, because the judgment of Coleridge C.J. wound up with the observation that, on the whole, the Court thought that it was wiser in that case, as is generally, and in all but exceptional cases, must he, to obstain from interference until the trial of the plea of justification”.
The judge then examined the detailed Affidavit of the Plaintiff, which be contrasted with the “baldest Affidavit” of the Defendant. He held that on the evidence before that Court there was nothing to support the plea of justification.
Of these two approaches I prefer the latter. I do not think that a rule which permits a Defendant to in effect oust the ability of this Court to intervene by way of injunction in an appropriate case by the simple expedient of exprossing an intention to plead justification at the trial of the action is consistent with the obligations imposed on the Court under the Constitution. Furthermore, the application of such a rigid rule, without an ability on the part of the Court to ascertain whether the plea of justification had any substance or not, would provide a happy hunting ground for unserupulous defamers.
I am therefore satisfied that it is open to the Court to examine the evidence adduced by the Defendant in support of the justification plea so as to ascertain whether it has any substance or prospect of success.
I turn now to consider the complaints made by the Plaintiff.
THE DRUGS DEALING ALLEGATIONS
In looking at these allegations I note that the Plaintiff accepts that he, together with 19 other nightclub operators in the Greater Dublin Area, has received notification from the police concerning drug activity and conduct relating to drugs on his club premises.
I have carefully read and re-read the parts of the article in respect of which complaint is made under this heading. Mr Malocco contends that in their natural and ordinary meaning the words in question do not allege any criminal activity on the part of the Plaintiff. In that regard I believe him to be correct. Even if I am wrong on that and the words do. in their natural and ordinary meaning, make such allegations, they certainly do not do so with the degree of clarity required to enable me to say that the words are without doubt dafamatory of and concerning the Plaintiff.
I therefore must now turn to the contention of the Plaintiff to the effect that by innuendo the words complained of amount to allegations of the wrong-doing alleged. The Plaintiff’s Counsel says that that is the clear inference which is to be drawn from the article. Amongst other things he says that whilst the article purports to deal with drugs in clubs {as is apparent from the cover of the magazine} in fact it is directed almost exclusively at the Plaintiff. A fair reading of the article supports this contention. The article speaks of the Plaintiff being “in big trouble”. It alleges that his premises has been visited by the police who bought drugs there on several occasions. It speaks about this not being the Plaintiff’s first brush with the law, but of him now facing difficulties which are “far more serious”. It alleges that the Plaintiff “is seriously worried”. It speaks of the consequences for him of a successful prosecution. It then resorts to a device frequently used by journalists of citing anonymous “sources close to” the Plaintiff, and indicating that the Plaintiff is concerned that “if convicted” other business interests he has might also suffer. In the same paragraph it goes on to point out that it would not be the first time that a nightclub owner was jailed. It then deals with a Donegal owner who was imprisoned for three years for allowing drugs to be sold on his premises.
Later in the article it speaks about it remaining to be seen if any premises are to be closed down or licensees jailed. In the same paragraph it mentions that cynics believe that no club owners will ever be jailed and that those club owners who are directly involved in drugs will continue for some time to make vast profits from allowing their venues to be used as drug havens. This paragraph is juxtaposed closed to the photograph of the Plaintiff’s car where it speaks of him enjoying “the high life”.
True it is that the article then goes on to say that it is unlikely that the owners of these clubs knew of these particular drug dealings as they have all adopted additional security measures to prevent the transactions in question. That statement comes in the final paragraph of the article.
I have come to the conclusion that looking at the parts of the article which are complained of as a whole, there is present an innuendo to the effect contended for by the Plaintiff. Furthermore I am of the view that such an innuendo is clear and that in the absence of a successful plea of justification a jury would say that the matter complained of was libellous. If they did so I do not believe that the Supreme Court would set aside the verdict as unreasonable. If the jury did not do so its decision would be likely to be set aside. I do not think that the inclusion of a single sentence in the final paragraph of the article would have much prospect of neutralising the sting contained in the remainder of it.
It seems to me that the article is carefully written so as to avoid making the direct allegation of criminal wrong-doing whilst at the same time creating in the mind of the reader a clear impression that the Plaintiff has connived at the use of his premises for drug dealing with considerable gain to himself.
If, of course, the Defendants can satisfy me that they have a prospect of success in their plea of justification then there can be no question of an injunction being granted in favour of the Plaintiff.
Apart of the stated intention to plcad justification what admissible evidence is there to support that plea? I refer to “admissible evidence” because earlier in the bearing I struck out portions of the Defendants’ principal replying. Affidavit together with the Affidavit of Luciano Magliocco pursuant to Order 40 Rule 12 of the Rules of the Superior Courts because of the scandalnus material contained in them.
I having examined the remaining portions of the Affidavit evidence it seems to me that the only real evidence which could amount to justification is that contained in paragraph 15 of the first named Defendant’s Affidavit. He says
“I say and believe that between January and June 1998, I have personally witnessed drugs being sold openly in both of these premises to young people. I say that I witnessed men and women who were dressed in the uniform of the club observing these drug dealings. I say that on the jour occasions I was present myself I also witnessed the Plaintiff John Reynolds moving around the club and mixing with people”.
I do not think that that averment goes anywhere near demonstrating the existence of an arguable prospect of making out the defence of justification.
THE ALLEGATION OF HOMOSEXUALITY
Throughout the article the Plaintiff is referred to on a number of occasions as a “gay bachelor”. He says that on its natural and ordinary meaning, the word gay is nowadays taken as meaning homosexual. He says that that is clearly defamatory of and concerning him and on this aspect of the matter it is so be noted that the Defendants disavow any intention to plead justification. On the contrary they accept that the Plaintiff is not homosexual but say that they never alleged that he was. In support of this contention they make a number of arguments which I will deal with in turn.
First, they say that the term “gay” is an adjective used to describe a person’s demeanour as in “lively, cheerful, vivacious, light-hearted, fond of pleasure and gaiety”.
Had this argument been made thirty years ago it would probably have succeeded. But it is an absurd proposition to put to the Court in 1998.
Language is a living thing and words can change their meaning over the years. Sometimes the primary meaning of a word will undergo subtle or even profound changes. On other occasions the word may acquire a secondary meaning which it did not formerly have. The word “gay” falls into the second category. Over the last thirty years or so it has come to be synonymous with homosexuals and homosexual activity. One would have to be resident on the moon not to be aware of this. Not merely has it acquired this secondary meaning but it has in fact eclipsed the primary meaning so that nowadays one rarely hears the term used other that a denoting homosexuals or homosexual activity. I reject the Defendants’ contention that the word is confined to the meanings asserted by them which I have reproduced in parenthesis above.
The next contention is that the use of the word “gay” (as an adjective) qualifying the noun “bachelor”, is a term in common use to refer to men who are happily unmarried. The Defendants contend that when the term “gay bachelor” is used it never indicates that the person is a homosexual. Again it seems to me that this argument could be made with telling force had this case occured in 1968 rather than 1998. It is true that the term “gay bachelor” or “bachelor gay” may still be used with slightly more frequency than the word “gay” in its original meaning. Nontheless it seems to me that nowadays the term has practically fallen out of use largely because of the secondary meaning of the word “gay”. I therefore reject the contention made by the Defendant that this term could not be defamatory.
The next contention made by Mr Mallocco is to the effect that even if he is wrong in these contentions to allege of a person that he or she is “gay” is not harmful to reputation. Mr Malocco says “homosexuality is an accepted part of Irish life and the days are long gone when homosexuals were simple tolerated; they are now accepted and integrated into the fabric of Irish life like other minorities and this magazine fully endorses that reality”. Mr Cooney S.C. for the Plaintiff says that this argument holds no water. He says that an allegation of being gay is an allegation of deviant sexual practice which many people in Irish society find repellant. He therefore argues that it is clearly defamatory.
No cases were cited by either side in support of the conflicting positions which they argue for.
My own researches have however discovered a decision of the Court of Appeal in England which is of assistance. In Regina .v. Bishop (1975) I QB 274 that Court had to consider a case where a Defendant was tried at first instance on a charge involving theft from a bedroom. In evidence he explained the presence of his fingerprints in the room by saying that he had had a homosexual relationship with a prosecution witness, which that witness had denied. The prosecution sought leave to ask the Defendant questions tending to show that he had been convicted of offences other that that charged because the nature and conduct of the defence was such as to involve imputations on the character of the witness for the prosecution within Section 1(f)(II) of the Criminal Evidence Act, 1898. The Defendant objected on the grounds that, in view of Section 1(I) of the Sexual Offences Act, 1967.an allegation that a man was a homosexual or practised homosexuality was not an imputation on his character within Section 1(f)(II) of the Act, 1898, and in any event the allegation had been made for the purpose of explaining the Defendant’s presence in the room and not for that of discrediting the testimony of the prosecution witness. The objection was rejected, questions about the Defendant’s previous convictions were asked, and he was convicted. He appealed to the Court of Appeal on the grounds that his objections to the evidence of his previous convictions had been wrongly rejected.
That Court (Stephenson L.J. MacKenna and O’Connor J.J.) dismissed the Appeal. The Court held that the character of a witness was impugned by an allegation of homosexual conduct made against him and an imputation of homosexual immorality against.a witness might reflect on his reliability. generally or in the witness box. The Court also held that a Defendant who made such an attack but disclaimed the intention to discredit the testimony of the witness nevertheless was still subject to the risk of cross-examination as to his own record. In the course of delivering the judgment of the Court Stephenson L.J. said:-
“Mr Bate submitted that in these progressive (or permissive) days it was no longer an imputation on a man’s character to say of him that he was a homosexual or that he practised homosexuality. Since 1967. when Section I of the Sexual Offences Act, 1967 became law, it was no longer an offence to commit a homosexual act with another man of full age in private. No reasonable person would now think the worse of a man who committed such acts; he might not wish to associate with him but he would not condermn him. We think that this argument goes too far and that the gap between what is declared by Parliament to be illegal and punishable and what the common man or woman still regards as immoral or wrong is not wide enough to support it. We respectfully agree with the opinion of Lord Reid in Regina .v. Knulter (Publishing Printing and Promotions) Limited (1973) AC 435 at 457 that “there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full senses”. and with him we read the Act of 1967 as saying that even though homosexual acts between consenting adults in private may be corrupting, if people choose to corrupt themselves in this way that is their affair and the law will not interfere. If Mr Price were to sue the Defendant in respect of his allegation if repeated outside a Court of law, we venture to think that a submission that the words were incupable of a defamatory meaning would be bound to fail and a jury would generally be likely to find them defamatory”.
Whilst this last statement is very much on point to respect of the issue that I have to deal with here it is of course a statement made obiter. Nonetheless it does appear to me to represent the legal position in England and in my view it also represents the legal position in Ireland.
Quite apart from the decision which I have just cited it does not appear to me to be sound to suggest that merely because an activity is no longer prohibited by the criminal law an allegation of engaging in such activity cannot be defamatory. The commission of adultery is not a criminal offence but nobody could seriously suggest that an allegation of adultery could not be defamatory. Similarly, to lie is not a criminal offence. but again can it be seriously suggested that to call a person a liar is not defamatory?
I reject the Defendant’s contentions in this regard.
The Defendant does however say that the photograph of the Plaintiff with a woman (albeit with her face blocked out) on his arm, and the suggestion that the Plaintiff is “featured regularly in the tabloid gossip columns where the names of his latest model girlfriends are plugged” makes it plain that no allegation of homosexuality is being made. I do not agree. It seems to me that it would be perfectly open to a jury to hold that the use of the word “gay” in relation to the Plaintiff either in its natural or ordinary meaning or by innuendo was an allegation of homosexuality. A jury would be entitled to find in the Plaintiff’s favour in that regard and if they did it does not appear to me that their verdict could be regarded as perverse. I do not think that the sting is removed by the reference to the appearance of the Plaintiff in the tabloid gossip columns or the photograph which accompanies the article.
As there is no plea of justification in respect of this complaint it follows that the Plaintiff has made out a sufficiently strong case in my view to satisfy the test required for the grant of an interlocutory injunction.
Having so concluded it does not automatically follow that an injunction should be granted.
THE DISCRETION
The grant of injunctive relief is always discretionary.
In the present case I now have to consider, having found in favour of the Plaintiff in respect of the complaints concerning the libels alleged, whether or not an injunction ought to be granted.
This is “a jurisdiction of a delicate nature” and the Court must be circumspect to ensure that it does not unnecessarily interfere with the right of freedom of expression.
I would not wish to set out in a hard and fast manner the factors which the Court should or could take into account in the exercise of this discretion. It is sufficient if I identify one item of particular importance which affects me in the exercise of my discretion in this case.
If I refuse the Plaintiff this injunction. it is clear that the article will be published and the Plaintif will be left to his remedy in damages at a trial to be held at some time in the future. Damages are the normal remedy for defamation and injunctions are not. Nothing in this judgment should be taken to dilute that approach. In the present case, however, the question arises as to what damages the Plaintiff would be likely to recover against the Defendants at trial.
The first named Defendant, has, on his own admission, recently completed a lengthy prison sentence imposed for offences of dishonesty. He formerly practised as a solicitor but that option is no longer open to him. There is uncontroverted evidence that he has unsatisfied judgments against him for a sum of money in excess of £40,000. It is also uncontroverted that he has other outstanding liabilities arising from the period when he practised as a solicitor. It seems to me, as a matter of probability, that the prospects of the Plaintiff ever recovering other that a paper judgment against Mr. Malocco are remote.
From the information that emerged at the bearing on Monday and Tuesday of this week, Messrs Murray and White do not exist.
There remains the curious figure of Mr. Lour. He did not appear either personally or through Counsel. Whilse in the magazine he gives his address as “London”, the only address to which the proceedings could be directed was at Foxrock Post Office. He describes himself as being the magazine’s publisher yet we now know that the publisher is Fanville Limited, the added Defendant. It seems to me that the shadowy figure of Mr. Lour is unlikely to prove to be any better prospect for the recovery of damages than Mr. Malocco.
Finally, there is Fanville Limited. This two pound company with both shares held by another limited liability company seems unlikely to make any judgment which the Plaintiff may obtain against it any less hollow than the judgment against the other Defendants.
In these circumstances I am quite satisfied that my discretion must be exercised in favour of granting an injunction rather than refusing it. To refuse it would be to consign the Plaintiff to a trial where damages would be an inadequate remedy because of the virtual impossibility of ever recovering any such awarded.
CONCLUSION
It follows that the Plaintiff is entitled to interlocutory relief and I therefore grant until trial an Order restraining the Defendants and each of them, their servants or agents or any person acting in concert with them or any person with notice of the making of this Order from in any manner or fashion howoever publishing of or concerning the Plaintiff an article entitled “Operation Night-cap Causes John Reynolds Sleepless Nights As Cops Raid Club” or any matter contained therein defamatory of the Plaintiff’s reputation.
Foley v Sunday Newspapers Ltd
[2005] IEHC 14
Reported In: [2005] 1 JIC 2805, [2005] 1 IR 88
7 Mr. Justice KellyTHE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
The defendant contends that no injunctive relief can be granted to the plaintiff pursuant to the provisions of the European Convention on Human Rights Act, 2003. In the plenary summons declaratory relief is sought by reference to that Act. However, it was accepted by the plaintiff that the interlocutory injunctive relief which he seeks in this application is not being sought pursuant to this Act. Consequently it is not necessary for me to consider the defendant’s submissions that the court has no jurisdiction to grant such an order.
THE CONSITUTION
The sole basis for the plaintiff’s claim is by reference to the right to life and bodily integrity conferred on him under the provisions of the Constitution. Counsel on his behalf said that what is at issue in the proceedings is the right on the part of the defendant to publish material which carries a real and substantial risk to his life. In that context it is said that his reputation is irrelevant save as it might be raised to attack his credibility on the genuineness of his fear should there be any repetition of the material contained in the article of 5th December, 2004.
Prior to the institution of these proceedings the plaintiff’s solicitor, by a letter of 8th December, 2004, sought an undertaking from the defendant that it would not in the future publish material of Mr. Foley which might in any way be construed as placing him at risk of attack from any source and that it would not violate his rights to privacy and the privacy rights of his family.
The defendant’s solicitor’s reply on 15th December, 2004, indicated that the defendant stood over the contents of the publication and the reporting of the plaintiff’s activities. He pointed out that the plaintiff had a number of attempts made on his life which were well documented and reported in criminal trials and court actions and that they all arose from his criminal activities. He went on to comment that it was remarkable that the plaintiff should attempt to suggest that the passing of information to the Garda authorities concerning criminal activities was in some way improper. He denied, in categoric fashion, that the defendant had defamed the plaintiff or had done anything unlawful or had violated his rights. The final sentence of the letter was unequivocal – “There will be no undertaking given to your client as demanded”.
PROHIBITORY INJUCTIONS
The speech of Lord Diplock in American Cyanamid Co. v. Ethicon Limited [1975] A.C. 396 is considered by some commentators to have clarified and by others to have revolutionised the approach of the courts to interlocutory injunctions. Whichever view be correct there can be no doubt as to the guidelines which he laid down for the courts to follow on such applications. His views were endorsed by the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88.
In short, the guidelines provide that in order to obtain an interlocutory prohibitory injunction a plaintiff must demonstrate û
(a) The existence of a serious question to be tried,
(b) The inadequacy of damages, and
(c) That the balance of convenience lies in favour of the grant of the injunction.
Whilst these issues, if resolved in favour of the plaintiff, will in many cases give rise to an injunction being granted (provided an appropriate undertaking as to damages is forthcoming) it is not always so. Indeed Lord Diplock acknowledged that in addition to these three questions there might be many other special factors to be taken into consideration in the particular circumstances of individual cases.
Over the years since the decision in American Cyanamid, a number of special categories of cases have been identified where the American Cyanamid guidelines, even if satisfied, do not result in an interlocutory injunction being granted. A good example of this is the rule that save in truly exceptional circumstances a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at trial.
This is known as the rule in Bonnard v. Perryman [1891] 2 Ch. 269 and is of some relevance to this case.
In Bonnard’s case Lord Coleridge CJ sitting with four other judges including the Master of the Rolls said that although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief, in all but exceptional cases they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail. He based this on the need not to restrict the right of free speech by interfering before the final determination of the matter by a jury save in a clear case of an untrue libel. He said:-
“The subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions”.
The rule in Bonnard v. Perryman was approved and followed by the Supreme Court in Sinclair v. Gogarty [1937] I.R. 377.
It was authoritatively restated in England in more recent times in Fraser v. Evans [1969] 1 Q.B. 349 and Herbage v. Pressdram Limited [1984] 2 All E.R. 769. In that case Griffiths LJ restated the effect of the rule and then said:-
“These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages”.
He refused to dilute the principle and having summarised an argument by counsel which suggested that the decision of the House of Lords in American Cyanamid v. Ethicon justified a departure from the rule he said:-
“If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining repetition of the alleged libel until the trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech”.
The rule in Bonnard v. Perryman has survived the enactment in England of the Human Rights Act, 1998. That Act incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of England and Wales. In a decision of the Court of Appeal given on 5th November, 2004, in the case of Greene v. Associated Newspapers Limited [2005] 1 All E.R. 30, it was held that the Act had not changed the rule.
If the present case were an action in defamation it is clear that having regard to what is being said on oath by the defendant to the effect that it stands over the allegations which it has made concerning the plaintiff, an injunction would not be granted. It is the defendant’s contention that the plaintiff should not be entitled to an injunction in the present case in circumstances where he has not brought libel proceedings and if he did so he would be refused an injunction. The injunction sought would be just as much an incursion into the freedom of the press and it is said ought not to be granted.
Although this argument was made as part of the defendant’s case that there was no serious issue for trial, I prefer to deal with it when I come to consider the balance of convenience and the exercise of the undoubted discretion which a court has in the grant of any interlocutory injunction of the type in suit.
SERIOUS ISSUE FOR TRIAL
Apart from the argument concerning the lack of jurisdiction under the European Convention on Human Rights Act, 2003 and the one to which I have just adverted, the defendant also contended that for a number of other reasons the plaintiff has not made out a serious issue for trial. I do not propose to rehearse them here as it is not necessary to do so having regard to the conclusion which I have reached on this application. I will therefore assume, although without deciding it, that the plaintiff has made out an issue for trial or, to use the words of Lord Diplock, that his action is not frivolous or vexatious.
ADEQUACY OF DAMAGES
Again under this heading I will proceed on the basis and assume that if the plaintiff is correct damages would prove to be an inadequate remedy for him since he contends his life is endangered by any repetition of the offending material.
BALANCE OF CONVENIENCE
In American Cyanamid, Lord Diplock said:-
“It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. They will vary from case to case”.
In the present case I have on the one hand the contention of the plaintiff that repetition of the matter which he has identified by the defendant between now and trial could give rise to a risk to his life and bodily integrity. On the other hand the defendant contends that it should be free to publish this material if it wishes to do so and that it stands over it as being true.
It is important to bear in mind that all of the material complained of consists of statements of fact or the expression of opinions. Nowhere is there any express exhortation made or encouragement given to anyone to harm the plaintiff. There is no evidence or reason to believe that the defendant will do so in the future. If there was a real and substantial risk of such an exhortation being made different considerations might apply.
In this country we have a free press. The right to freedom of expression is provided for in Article 40 of the Constitution and Article 10 of the European Convention on Human Rights. It is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceeding. Important as it is however, it cannot equal or be more important than the right to life. If therefore the evidence established a real likelihood that repetition of the material in question would infringe the plaintiff’s right to life, the court would have to give effect to such a right. That appears to be the gist of what was said by Finlay CJ in SPUC v. Grogan [1989] I.R. 753 at 765 where in the context of the facts of that case he said:-
“With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right, the only matter which could properly be capable of being weighed in the balance against the granting of such a protection would be another competing constitutional right”.
That case was decided in circumstances where the court had clearly established that the actual activity which the defendants in the case were claiming and intending to pursue as of right was unlawful having regard to the provisions of Article 40 of the Constitution.
I do not accept the contention made by counsel for the plaintiff that the passage which I have just quoted is of universal application regardless of the facts. On his argument once a plaintiff seeks an injunction to protect a constitutional right the balance of convenience is recalibrated so as to permit only the consideration of another competing constitutional right.
To apply this approach could give rise to injustice and abuses of process. A formulaic assertion of a claim to protect a constitutional right without any analysis of the background against which it was made being open to the court and an ability only to consider on the balance of convenience a competing constitutional right could give rise to considerable injustice.
I do not accept that the statement relied upon by counsel for the plaintiff was intended to or does in fact create a general principle applicable regardless of circumstances in all cases where an injunction is sought in the protection of a constitutional right. The court is not deprived of its ability to assess the evidence and its context and to consider fully the balance of convenience.
There are a number of matters which appear to me appropriate to take into account on this question of the balance of convenience.
First, all of the material which has been complained of is already in the public domain. Much of it has been in the public domain for a very long time. In the case of what I have described as the first complaint it was published in book form in August, 2003. It was repeated by the newspaper in October, 2003. Despite what is now said by the plaintiff he took no proceedings of any sort in relation to those publications. In my view it is altogether too late to seek an injunction restraining further publication of this material. It also calls into question the genuineness of his alleged belief concerning this material particularly when he has avoided swearing any affidavit himself in these proceedings.
Similar observations can be made in respect of the second complaint which deals with material first published in April, 2004.
The third complaint is undoubtedly new. No criticism on the grounds of delay can be made of the plaintiff in this instance.
I have already mentioned the argument made by the defendant to the effect that as the plaintiff would not be granted an injunction of this type in a defamation action so he should not be granted such in the present case. I do not think that that necessarily follows but I am quite satisfied that before an injunction of this type should be granted the plaintiff would have to demonstrate by proper evidence a convincing case to bring about a curtailment of the freedom of expression of the press.
This is particularly so having regard to the strongly expressed guarantees in the Constitution in favour of freedom of expression. The Irish (and indeed the English courts in the absence of a written constitution) have always shown a marked reluctance to exercise their injunction jurisdiction in a manner which would entrench on the freedom of expression enjoyed by the press and the media generally. A good example of this is to be found in the judgment of O’Hanlon J. in MM v. Drury & Ors. [1994] 2 I.R. 8.
This approach is also justified having regard to the provisions of Article 10 of the European Convention on Human Rights and the jurisprudence which has built up on foot of it.
Article 10 of the European Convention on Human Rights is entitled “Freedom of Expression” and reads as follows:-
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
In the case of Venables v. News Group Newspapers Limited [2001] Fam. 430 Butler-Sloss P. held (admittedly on a trial) that by virtue of Article 10 of the Convention the freedom of the media to publish could not be restricted unless the need for such restrictions fell within the exceptions in Article 10(2) which were to be construed narrowly. She also held that the onus lay on those seeking such restrictions to show that they were in accordance with the law, necessary in a democratic society to satisfy one of the strong and pressing social needs identified in Article 10(2), and proportionate to the legitimate aim pursued.
In the course of her judgment she cited with approval the observations of Munby J. in Kelly v. British Broadcasting Corporation [2001] Fam. 59 where he said:-
“If those who seek to bring themselves within para. 2 of Article 10 are to establish “convincingly” that they are û and that is what they have to establish û they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required… is proper evidence”.
In the present case it appears to me that the evidence falls short of what would justify me in curtailing the freedom of the defendant to state facts and express opinions upon the plaintiff and his activities.
As I have already pointed out, I can find no evidence of any express exhortation or positive encouragement to persons to do violence to the plaintiff.
The three previous attempts on his life long antedate the publication of any material by the defendant which the plaintiff has identified as offensive. That fact is supportive of the view that any risk to the plaintiff’s life or wellbeing comes not from any publication by the defendant but rather from his own involvement in criminal activities and the criminal underworld.
As the evidence stands I am satisfied that I would not be justified in restricting the defendant’s right between now and the trial of this action to write of or concerning the plaintiff provided of course that they do not exhort anybody to do violence towards him. They have not done so in the past and there is no evidence that they intend to do so in future.
Whatever about the issues that fall to be determined at trial the evidence before the court does not justify the curtailment of the defendants rights which the plaintiff seeks.
Furthermore the information in question is in the public domain and the bringing of this action with its attendant publicity has given it a much wider circulation. An injunction restraining this defendant from repeating it would have little value. The plaintiff has of course by bringing this action obtained prominence for his denials of the allegations with which he takes issue.
I am also satisfied that the order which is sought is altogether too wide. If it were to be granted in the terms sought the task of the defendant in attempting to ascertain what would be permissible material to publish and what not would be very difficult indeed. Even if I were minded to grant an injunction I would not do so in those terms.
Accordingly the application for injunctive relief is refused. I will however direct an early trial of this action and will hear counsel on the question of the delivery of accelerated pleadings and the fixing of a trial date.
Cogley v Radio Telefís Éireann
[2005] 4 IR 79
Mr. Justice Clarke
The Claims
Both plaintiffs sought, ultimately, the same relief. They sought to restrain the broadcast of the programme in question. However they did so on somewhat different bases. It is necessary, therefore, to consider each of the claims as made.
In the Cogley proceedings the plaintiff based her claims squarely on defamation. She, therefore, contended that the court should grant an interlocutory injunction to prevent the broadcast of the programme so that she might not be defamed.
The plaintiffs in the Aherne proceedings adopted a somewhat different course. They relied upon the fact that in the course of the programme a significant volume of material is shown which was obtained on foot of the use of a secret camera in the circumstances referred to above. Thus, it is contended, this material was obtained in breach of the plaintiffs right to privacy and its publication should be restrained. It should also be noted that the plaintiffs in the Aherne proceedings did not disavow a defamation leg to their case. However, relying upon the fact that a copy of the intended programme was only made available to them in time for it to be viewed on the morning of the hearing, the plaintiffs in the Aherne proceedings indicated that the case was not originally made in defamation because they did not know, with any precision, the detail of the content of the programme. In those circumstances it seems to me that it was appropriate that I should also consider whether it was likely that the plaintiffs in the Aherne proceedings would have been able to maintain a claim to restrain the programme on the basis of defamation.
Defamation
The law in relation to the grant of an injunction at an interim or an interlocutory stage for the purposes of restraining potentially defamatory material has been the subject of a number of determinations of the courts in recent years. From the perspective of those who might seek such orders the high water mark would appear to beReynolds v. Molocco and Others (Unreported, High Court, Kelly J. 11th December, 1998). It is clear from the judgment in that case that a plaintiff must not only show that he or she “has raised a serious issue concerning the words complained of” but that it must also be shown “that there is no doubt that they defamatory” (pages 6 to 7). This principle is derived from a long line of authority both in the United Kingdom and in this jurisdiction to the effect that an injunction will lie only in “the clearest cases” Sinclair v. Gogarty [1937] I.R. 377.
It should be noted that one of the key issues inReynolds v. Molocco was as to whether the mere assertion by a defendant that he intended to raise a plea of justification was, of itself, sufficient to prevent a court from granting an interlocutory injunction (a proposition for which there was some authority in the United Kingdom). What Kelly J. determined in Reynolds v. Molocco was that it was necessary for a defendant to put forward some basis which was credible and potentially sustainable to suggest that the plaintiff might not succeed at trial. On the facts of that case Kelly J. considered in some detail the article intended to be published and concluded that it necessarily bore an innuendo in relation to the plaintiff concerning the availability of drugs at a nightclub premises run by him which was defamatory. Having considered the evidence put forward by the defendant Kelly J. was not satisfied that the defendant had any possibility of successfully pleading justification. Nor were there, apparently, any other defences available to the defendant on the basis of the case made at the interlocutory stage. In those circumstances Kelly J. was satisfied that the plaintiff was bound to succeed.
It seems clear, therefore, that the first question that needs to be addressed in any interlocutory application in which a plaintiff seeks prior restraint on the publication or broadcast of material, on the grounds that it is defamatory is as to whether on the evidence available at the interlocutory stage, it is clear that the plaintiff will ultimately succeed at a trial. For reasons which have been fully explored in the content of interlocutory injunctions generally (from the decision of the Supreme Court inCampus Oil v. Minister for Industry (No 2) [1983] I.R. 88 onwards) it does not seem to me to be appropriate to ask this court at an interlocutory stage and where it will, necessarily, have available to it only a limited opportunity to consider the merits of a case, to attempt to weigh the likelihood of a plaintiff succeeding or failing. Similarly it does not seem to be appropriate to invite the court to weigh the likelihood of the defendant succeeding in maintaining any defence in defamation proceedings. Thus the plaintiff will fail to cross the first hurdle if, on the basis of the argument and materials before the court, it appears that there is any reasonable basis for contending that the defendant may succeed at the trial of the action. The defendant may succeed in defending the action for any one of a number of reasons. For example the words or materials intended to be broadcast or published may not be found to be defamatory in the first place. Though defamatory the words may be shown, to the extent that they are defamatory, to be justified. There may on the facts of appropriate cases be possible defences of qualified privilege or, possibly, a public interest defence although the availability and parameters of such a defence in this jurisdiction have yet to be clearly established. I am satisfied that the reference in the authorities to a clear case means a case where it is clear that the plaintiff will succeed and where, therefore, it is equally clear that none of the possible lines of defence which may be open to a defendant could reasonably succeed. Kelly J. in Reynolds v. Molocco did not depart from that principle. He rejected the proposition that a mere assertion of an intention to justify was, of itself, sufficient.
Before departing from the principles it does seem to me that it is also necessary to note that notwithstanding the conclusions reached by Kelly J. inReynolds v. Molocco in relation to this first question he nonetheless felt that it was appropriate for him to consider whether it was, nonetheless, an appropriate exercise of his discretion to grant the injunctions sought. In coming to that view Kelly J. noted that damages were the ordinary and appropriate remedy for defamation and that an injunction was not. The special circumstance which seemed to have acted most strongly in favour of the exercise of the discretion to grant an injunction in that case was the conclusion reached by the learned trial judge about the financial standing of the defendant and the “virtual impossibility of ever recovering any sum awarded”. It would therefore appear that even in a case where it can be clearly shown that the defendant would have no defence the court retains a discretion which can be exercised having regard to all the circumstances of the case.
Application to Cogley case
In analysing the case made on behalf of Ms. Cogley it should be noted that the programme does make clear that she has only held the office of Director of Nursing for six weeks. While it is contended on her behalf that it is likely that that fact was only added to the programme as a means of reducing the risk of it being defamatory (and, by inference, that the defendants were not aware of that fact until it was drawn to their attention on behalf of Ms. Cogley) nonetheless the programme which it is now intended to broadcast does contain that information. It should also be noted that two separate extracts from the programme which were filmed secretly show Ms. Cogley exhorting members of staff at general staff meetings to improve their standards. It is open, therefore, on one view, to consider the programme as one which depicts Ms. Cogley as someone who has been placed in the very difficult situation of attempting to deal with a nursing home in which very low standards have applied for a significant period of time. While all of the secret filming would appear to have occurred during a time when she, Ms. Cogley, was in charge, much of the remainder of the programme concerns interviews with the relatives of former residents whose experiences date back long before Ms. Cogley was involved.
Three specific complaints are relied on to seek to establish that the programme is defamatory of Ms. Cogley. In fairness to her counsel it should be pointed out that he, like counsel for the plaintiff in the Aherne proceedings, only had the opportunity to view the programme on the morning of the hearing. He only had, when the matter was initially called at 10.30, the opportunity to have viewed a portion of it. As it was necessary, for logistical reasons, to put the case back to 2 o’clock counsel had the opportunity to view the remainder during that interval. He did, however, indicate that having seen the programme he would, had time permitted, have sought to put in a further affidavit.
In any event the three specific items complained off were as follows:-
1. That the programme suggests that Ms. Cogley was engaged in a deception as to the weight of a patient so that Health Board inspectors would not be aware that the patient had not been weighed.
2. It is contended that, though not named specifically in this regard, the programme contains a suggestion that Ms. Cogley must necessarily have been involved in a situation where a patient whose family had paid for fulltime care had not, the programme contended, been given such care.
3. Finally insofar as the entire tenor of the programme maintains serious accusations about standards in Leas Cross it is contended that such are necessarily defamatory of Ms. Cogley.
In relation to the weight issue the relevant part of the programme contains secretly filmed comments made by Ms. Cogley in circumstances where, it would appear, the charts of the relevant patient did not contain a weight and she is shown discussing with the filmer the likely weight of the patient concerned. There then follows the comment of an expert who is critical of the fact that there was apparently and allegedly an insufficient understanding of the importance of weight loss in the management of elderly patients suffering in the manner concerned. It is, of course, impossible at this stage to judge whether the film shown, taken with and the comment of the expert, fairly and properly reflect the true situation. It may be, as the plaintiff contends, that she will be able to satisfy a jury that having regard to all of the background facts relevant to the management of the patient concerned and the appropriate meaning of the parts of the broadcast relating to that issue, the programme contains an unjustified imputation against her professional competence. It would not, however, be possible at this stage to conclude that she would necessarily succeed in so doing.
In relation to the second issue the programme shows a discussion between the filmer and a senior nurse (not Ms. Cogley) during which the senior nurse appears to indicate that she had sought on the occasion in question (but failed to obtain) a care worker to provide the full time care of the patient concerned. Again it may turn out to be the case, when all of the relevant background is put before a jury, that the implications of the relevant part of the broadcast reflect, in an unjustifiable way, on the competence of the plaintiff. It must again, be concluded that such an outcome is not clear.
In relation to the third issue, the same comment can be made. There can be little doubt that the programme contains accusations of the highest degree of seriousness as to the standards which operated within the nursing home concerned. For the reasons indicated above it is not at all so clear that, at least in a great many respects, a reasonable viewing of the programme would cause a viewer to conclude that Ms. Cogley was at fault. Even to the extent to which a reasonable viewer might infer that the programme contends that Ms. Cogley is at fault, it is by no means clear that, in the light of all the evidence that is likely to be before such a jury, the jury will necessarily conclude that any imputation of fault is not justified.
Before passing from an analysis of the programme in respect of Ms. Cogley it should also be noted that a great deal of the programme consists of either interviews with the relatives of persons who were patients at the home, the secretly filmed footage obtained in the manner described above, and the comments of experts. It seems unlikely, therefore, that it can be denied that the events shown on the secretly filmed footage actually occurred. It may, of course, be that Ms. Cogley will be able to persuade a jury that the way in which that film was put together and edited with the comments of experts amounts to an unfair presentation of the picture to such an extent that she may be able to succeed. However I do not believe a court could, at this stage, conclude that such an outcome, on the materials currently available, is now clear.
On the basis, therefore, of the established jurisprudence it does not seem to me that the plaintiff in the Cogley proceedings has crossed the first threshold and therefore I refused her application for interlocutory relief.
The Aherne Proceedings
It is now necessary to turn to the Aherne proceedings. As was pointed out earlier these proceedings are largely based upon a contention that key aspects of the programme (that is to say the secretly filmed footage), were obtained in circumstances which amounted to a breach of the plaintiffs right to privacy and were also unlawful as having been obtained while the person concerned was a trespasser. It is also necessary to consider the contention of these plaintiffs to the effect that there is a breach of the right to privacy of others (most especially patients).
That the plaintiffs have a right to privacy is clear. Firstly s. 3 of the Broadcasting Authority (Amendment) Act1976 amends the Broadcasting Authority Act 1960 by the inclusion of a provision (s. 18(1B))to the effect that “the authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.”
It is also clear fromKennedy v. Ireland [1987] I.R. 587 that a right to privacy is one of the personal rights of the citizen guaranteed by, thought not specifically mentioned in, the constitution.
However it is also clear fromKennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts referred to above is also not unqualified in that it places an obligation on the Authority not to “unreasonably encroach” on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs in the Aherne proceedings have a constitutional right to privacy and an arguable entitlement to ensure that the Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and in particular how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.
In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.
It seems to me that different considerations apply most particularly at an interlocutory stage, dependent on which of the above elements of the right to privacy is involved.
In this regard I have also received assistance from the decision of the Court of Appeal in the United Kingdom inDouglas and Others v. Hello! Limited Times Laws Reports 16th January, 2001. That case differs from the current case in many respects. It amounted to a dispute as to whether the magazine OK! had exclusive rights to the publication of photographs taken at the wedding of the plaintiffs (Michael Douglas and Catherine Zeta Jones). Hello! had obtained possession of unauthorised photographs taken at the wedding and were about to publish them. In deciding not to grant the interlocutory relief sought, notwithstanding that it appeared that the unauthorised photographs had been taken in breach of the obligation of some person, whether guest or intruder, the court would appear to have had regard to the fact that while the plaintiffs had an arguable case that their right to privacy had been infringed it was necessary to balance that right with the right of freedom of expression. However the court placed reliance on the fact that the jurisprudence of the European Convention on Human Rights acknowledged different degrees of privacy. The more intimate the aspect of private life being interfered with, the more serious must be the reasons for interference. Dudgeon v. United Kingdom (1981) 4 EHRR 149. The fact that the plaintiffs in Douglas had in fact allowed significant publicity to attach to their wedding lessened the right of privacy. It was also clear, as was noted by Lord Brooke, that there was no significant public interest issues involved and that that was a factor.
It is clear, therefore, that the weight to be attached to the undoubted right of parties to privacy can vary significantly from case to case.
It is also necessary to have regard to the fact that the plaintiffs in the Aherne proceedings placed reliance on the right to privacy of others (most particularly patients) whom, they contended, have had their rights to privacy potentially infringed by the methods adopted in the taking of the secret film and whose right to privacy would be infringed in a much greater way should the broadcast containing such film be permitted. However in that regard the state of the evidence at present is as contained in para. 10 of the affidavit of Mr. Doyle which notes that the programme in the form in which it is intended to be broadcast seeks to protect the privacy interests of patients by obscuring their identities through a technical process known as pixilation, or by obtaining the consent of the patients families to the proposed broadcast, or both. On the basis of the evidence before me I have no reason to believe that such measures will not effectively protect the privacy rights of the patients concerned. On that basis I am not persuaded that I should take into account any privacy rights other than those of the plaintiffs. In saying that I would wish to emphasise that should it transpire that appropriate measures were not, in fact, taken by the programme producers for the purposes of giving reasonable and adequate protection in all the circumstances of the case to those who may have appeared on the film nothing in this judgment should be taken as implying that such parties would be debarred from seeking a remedy in the court. The extent to which it might, in those circumstances, be open to RTE to place reliance on the public interest involved in the broadcast of the programme would be a matter to be determined in such a case based on all the relevant circumstances.
So far as the right to privacy of the Aherne plaintiffs themselves is concerned it seems to me to fall into the second of the categories referred to above. It can be hardly be said that any right to privacy which the Ahernes or their company may enjoy in relation to the conduct of their nursing home business is such as would preclude information about the conduct of that business which tended to suggest that there were serious irregularities in the manner in which it was being conducted, from being broadcast. However the manner in which secret filming occurred in this case gives rise to more significant questions.
In that regard I have obtained particular assistance from the decision of the Court of Appeal in New Zealand inTV3 Network Services Limited v. Fahy (1999) 2 NZLR 129. In many respects TV3 bears significant resemblance to this case. TV3 equipped a woman who had made accusations against a medical practitioner with a concealed video camera so that it might film an appointment which she had made to see the doctor who was the subject of misconduct accusations. The most significant difference between TV3 and the current case is that the television station involved had, in that case, already broadcast a programme making accusations of sexual misconduct against the doctor concerned prior to the secret filming. The secret filming therefore took place in the context of a situation where the doctor concerned was already the plaintiff in defamation proceedings. However many of the general principles identified by the judgment in that case are equally applicable to circumstances such as exist in this case.
In relation to the status of the woman who was equipped with the concealed camera the court came to the following view:-
“This brings us to the third ground, trespass and invasion of privacy. Trespass is a civil wrong and entering and remaining on Dr. Fahey’s premises for the purposes of confronting him with allegations of sexual and professional misconduct and surreptitiously recording the conversation could scarcely come within the terms of the normal implied licence to attend at a doctor’s surgery. Clearly TV3 encouraged and facilitated X’s action. As to the privacy implications discussed in Todd, The Law of Torts in New Zealand (2nd Ed. 1997) at p. 951, in terms of the Broadcasting Act 1989, TV3 was and is responsible for maintaining in its programmes and their presentation standards which are consistent with the privacy of the individual (s. 4(1)(c)) but it is not under a civil liability in respect of any failure to comply with any provisions of the section (s. 4(3)).”
In circumstances where the programme proposed to be broadcast may have been obtained in breach of the plaintiffs rights, the court, when considering the grant of an injunction, is required to weigh and balance the competing rights and values at stake. In that assessment the context and circumstances in which the impugned methods were employed, any special public interest considerations for broadcasting the programme, and the adequacy of damages as an available remedy for any wrong proved at trial, are amongst the considerations which must ordinarily be weighed” (p. 135).
The court then went on to apply those principles to the facts of the case before it.
On the basis of the above authority, which I find persuasive, it would seem that the plaintiff has at least made out an arguable case to the effect that the circumstances in which the surreptitious filming within Leas Cross occurred may amount,prima facie, to a trespass and breach of privacy. The implied entitlement of the individual concerned to be present as an employee would not be such as would be likely to encompass the conduct which actually occurred.
However it seems clear fromTV3 that the mere fact that information may, arguably, have been obtained in breach of an individual’s rights is not, of itself, necessarily decisive. What also needs to be weighed in the balance is the importance of any public interest issues which arise and also the extent to which damages may be an adequate remedy.
The Public Interest
I should emphasise that at this stage anything which I say concerning the content of the programme should not be construed as amounting to a finding of fact by the court or that any facts alleged have been established. It will necessarily be the case that at an interlocutory stage a court which is asked to assess the extent of the legitimate public interest in a particular broadcast will have to have regard to the necessarily limited information that will be available to it at that stage.
However subject to that caveat it seems to me, having viewed the programme, that the following issues of very significant public importance indeed are potentially raised by the programme:-
(a) whether the standards applied at the Leas Cross Nursing Home fall, to a very marked degree, short of the standards that could be reasonably be expected in such a home;
(b) the extent to which, in addition to its ordinary regulatory role, the above matters ought to be of concern to the authorities charged with the administration of the health service by reference to the fact that, it would appear, a significant portion of the funding of the patients who reside at the home is provided out of public funds;
(c) the extent to which the existing regulatory regime in respect of such homes has been properly administered by those charged with that task; and
(d) whether that regulatory regime is, in itself, sufficient to allow for the proper regulation of the nursing home sector.
It should also be taken into account in assessing the importance of the public interest issues involved that those whom it may be said would suffer should the contentions of the programme be borne out are an extremely vulnerable section of the community who have a limited (or in many cases no) voice of their own.
In all those circumstances it seems to me that the issues raised in the programme are those of the highest public interest and that, therefore, a very significant weight indeed needs to be attached to those matters in weighing the rights and values involved at this stage.
It should be noted that one of the underlying reasons for the reluctance of the courts in this jurisdiction to grant injunctions at an interlocutory stage in relation to defamation stems from the fact that if the traditional basis for the grant of an interlocutory injunction (i.e. that the plaintiff had established a fair issue to be tried) was sufficient for the grant of an injunction in defamation proceedings public debate on very many issues would be largely stifled. In a great number of publications or broadcasts which deal with important public issues persons or bodies will necessarily be criticised. There will frequently be some basis for some such persons or bodies to at least suggest that what is said of them is unfair to the point of being defamatory. If it were necessary only to establish the possibility of such an outcome in order that the publication or broadcast would be restrained then a disproportionate effect on the conduct of public debate on issues of importance would occur. In that regard it is important to note that both the constitution itself and the law generally recognises the need for a vigorous and informed public debate on issues of importance. Thus the constitution confers absolute privilege on the debates of Dáil and Seanad Éireann. The form of parliamentary democracy enshrined in the constitution requires that there be a vigorous and informed public debate on issues of importance. Any measures which would impose an excessive or unreasonable interference with the conditions necessary for such debate would require very substantial justification. Thus the reluctance of the courts in this jurisdiction (and also the European Court of Human Rights) to justify prior restraint save in unusual circumstances and after careful scrutiny. Similar considerations also apply to a situation where a party may contend that there has been a breach of his right to privacy but where there are competing and significant public interest values at stake. It is for that reason that I have distinguished between a right to privacy which subsists in the underlying information which it is sought to disclose on the one hand and information which might legitimately be the subject of public debate on an issue of public importance (albeit private to some extent) but where there may be a question as to the methods used to obtain that information on the other hand.
I would wish to emphasise that the balancing exercise which I have found that the court must engage in is not one which would arise at all in circumstances where the underlying information sought to be disclosed was of a significantly private nature and where there was no, or no significant, legitimate public interest in its disclosure. In such a case (for example where the information intended to be disclosed concerned the private life of a public individual in circumstances where there was no significant public interest of a legitimate variety in the material involved), it would seem to me that the normal criteria for the grant of an interlocutory injunction should be applied. In such cases it is likely that the balance of convenience would favour the grant of an interlocutory injunction on the basis that the information, once published, cannot be unpublished. It is also likely, in such cases, that damages would not be an adequate means of vindicating the right to privacy of the individual.
However, as I have indicated, where, as here, the information concerned is one which, on its face, appears important to an informed public debate on an issue of significant public importance different criteria, it seems to me, apply.
Finally in considering whether the test adopted by the Court of Appeal in New Zealand is the appropriate test to be applied in this jurisdiction I have given consideration to the argument of counsel for the plaintiff in the Aherne proceedings which sought to distinguish the situation in New Zealand from that which pertains in this jurisdiction by reference to both the constitutional recognition of the right to privacy and the express statutory obligation on RTE to respect privacy.
However it seems clear from the passage fromTV3 referred to above that the jurisprudence of the New Zealand courts also recognise a right to privacy and, as with the courts in this jurisdiction, the courts in New Zealand are called upon to engage in a balancing of rights where rights come into conflict. Similarly the passage quoted above makes clear that the relevant New Zealand legislation places an obligation on broadcasters to respect privacy. Finally it seems clear from the judgment taken as a whole that the overall approach of the courts in New Zealand to what is described in the judgment as “prior restraint” is broadly similar to the established approach of the courts in this jurisdiction. In all those circumstances it seems to me that the New Zealand Court of Appeal, in TV3, was engaging in an exercise which involved considerations very similar to those which would apply in this jurisdiction and was operating within a legal framework which, in turn, was very similar. In the circumstances I find the authority persuasive and would propose adopting the tests identified as being the appropriate criteria to be applied for the grant of interlocutory relief in this jurisdiction in circumstances such as this. The matters which need to be considered are, therefore:-
1. A consideration of the context and circumstances in which the impugned methods were employed;
2. Any special public interest considerations in favour of broadcasting the programme; and
3. The adequacy of damages as an available remedy for any wrong proved at trial.[1986]
Attorney General for England and Wales v. Brandon Book Publishers Ltd.
Carroll J.
2nd December 1986
[1986] IR 601
The plaintiff has come to court seeking to restrain the publication of a book written by a deceased member of the British Secret Service which I have read overnight.
This case is based solely on the principle of confidentiality as no considerations of public interest arise in this jurisdiction. The plaintiff claims that the confidentiality derives from the employment of the authoress.
Any consideration of the question of preventing publication of material of public interest must be viewed in the light of the Constitution. Article 40, s. 6, sub-s. 1 guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions subject to public order and morality. In the expansion of that, the Article refers to the organs of public opinion preserving their rightful liberty of expression provided it is not used to undermine public order or morality or the authority of the State. There is no question of public order or morality or the authority of the State being undermined here. Therefore in my opinion there is prima facie a constitutional right to publish information and the onus rests on the plaintiff to establish in the context of an interlocutory application that the constitutional right of the defendant should not be exercised.
Counsel for the plaintiff has referred to House of Spring Gardens v.Point Blank [1984] I.R. 611. The judgment of Costello J. in the High Court was cited with approval by O’Higgins C.J. at p. 696 of the report. The principles which he formulated were based on a consideration of a number of cases, all of which concerned obligations of confidence between private parties, e.g., privately printed etchings, a secret recipe for compounding medicine, copyright in drawings for tools, information about folding buildings, information about a Swiss patent, information about a carpet grip, a private report by a public relations consultant to the Greek Government and information communicated by inventors in the course of business negotiations. All of these instances in which the court came to the protection of the imparter of information had a private or an industrial or trade setting.
Costello J. himself says in the quotation from his judgment set out at p. 696 that he formulates the principles “which I think should be applied in a case like the present one”, i.e., the protection of secret trade information. He talks of the degree of skill, time and labour involved in compiling the information, which puts it in a trade setting and has no parallel with the present case.
McCarthy J. makes the observation at p. 709 that the obligations of secrecy while enforced by equitable principles depend more upon commercial necessity than moral duty. This reinforces my view that what was at issue and what was laid down in House of Spring Gardens v. Point Blank [1984] I.R. 611 were the principles to be applied between private individuals in a commercial context. I accept that communications between husband and wife would also be protected on different grounds, as in Argyle (Duchess) v. Argyle (Duke) [1967] Ch. 302. That is a completely separate category which has no relevance here.
The publication which is sought to be prevented here is not a private confidence or trade information but information shared between a government and a private individual. It seems to me that a distinction can and should be drawn between a government and a private person. This was considered in the Australian case of The Commonwealth of Australia v.John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39. At pp. 51-52 Mr. Justice Mason says as follows:
“The equitable principle has been fashioned to protect the personal, private and proprietary rights of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”
I consider that that correctly states the law. Mr. Justice Mason was talking there in the context of the Government of Australia asking the courts of Australia to restrain publication where the question of public interest did arise and which would arise here if the Government of Ireland were the plaintiff. But here the plaintiff is the representative of a foreign government. There is no question of the public interest of this State being affected. The considerations which would move the courts in the United Kingdom in this matter are different to the considerations here. It is for this reason that The Attorney General v. The Observer Ltd. and Others ; The Attorney General v. Guardian Newspapers Ltd. and Others (Unreported, English Court of Appeal, 25th July, 1986) are not in point. There conflicting public interests had to be weighed. In his judgment at p. 17 Sir John Donaldson, Master of the Rolls, says:
“Where there is confidentiality, the public interest in its maintenance has to be overborne by a countervailing public interest if publication is not to be restrained. In some cases the weight of the public interest in the maintenance of the confidentiality will be small and the weight of the public interest in publication will be great. But in weighing these countervailing public interests or perhaps more accurately those countervailing aspects of a single public interest, both the nature and circumstance of the confidentiality and the nature and circumstance of the proposed publication have to be examined with considerable care.”
Those considerations do not apply here. The considerations which do apply are:
(a) the defendant has a constitutional right to publish information which does not involve any breach of copyright;
(b) the public interest in this jurisdiction is not affected by the publication;
(c) there is no breach of confidentiality in a private or commercial setting and
(d) there is no absolute confidentiality where the parties are a government and a private individual.
Therefore it appears to me that no cause of action has been shown. In the context of this case the issue to be tried is whether there is a cause of action or not.
In those circumstances I have no doubt that the balance of convenience must lie with the right of the defendant to exercise its constitutional right to publish. The exercise of a constitutional right cannot be measured in terms of money: what is at stake is the very important constitutional right to communicate now and not in a year or more when the case has worked its way through the courts.
Hynes-O’Sullivan v. O’Driscoll
[1988] IR 439
Finlay C.J. 439
21st July 1988
This is an appeal brought by the plaintiff against the dismiss of her claim for damages in the High Court. The plaintiff is a consultant psychiatrist holding appointments from the Southern Health Board and also engaged in private practice in Cork. The defendant is a solicitor practising in Cork. In May, 1982, the defendant was retained to act for the husband in matrimonial proceedings which were to be held in the High Court in Dublin. He was satisfied that the plaintiff was a necessary and relevant witness to give evidence on behalf of the husband with regard to examinations she had made of the wife some years previously. The defendant had before this occasion neither met nor had professional dealings with the plaintiff. At the defendant’s request his client spoke to the plaintiff about attending as a witness and she requested that the defendant should contact her. Two telephone conversations then took place between the plaintiff and the defendant as a result of which the plaintiff indicated that she was not prepared to travel to Dublin to give evidence in the case. The defendant caused a subpoena ad testificandum accompanied by a viaticum of £20 to be served on the plaintiff and she did attend in Dublin at the family law court on the morning of Tuesday, the 11th May, 1982, the date fixed for the commencement of the hearing of the case. The case was settled after luncheon time without having commenced, and the plaintiff was informed of this by the defendant and returned home. Approximately a week later the plaintiff submitted to the defendant an account of her fees for attending court as a witness, in the sum of £300. The defendant wrote in reply seeking a breakdown of this figure, and to that request there was no response to him from the plaintiff.
On the 3rd June, 1982, the plaintiff wrote to the Incorporated Law Society enquiring as to whether the Society had laid down any guidelines with regard to the issuing of subpoenas to professional people so as to enforce their attendance at court at extremely short notice. In that letter she set out her version of her dealings with the defendant and complained that the defendant had acted in a reprehensible fashion to cause her such harassment. She also sought the help of the Society in obtaining her fees, stating that the seeking by the defendant of a breakdown of them was a further insult to her professional integrity. The Law Society sent a copy of this letter to the defendant and asked him for his comments on it.
On the 24th June, 1982, the defendant wrote a lengthy letter to the Law Society commenting on the letter which the plaintiff had written and giving his version of the events leading to her attendance in court as a witness. In the course of that letter the defendant accused the plaintiff of duplicity and described her as a person “who holds scant regard for professional ethics and even less for the solemnity of the law.” He stated that when he informed the plaintiff that he would be obliged to serve a subpoena upon her to secure her attendance at court on behalf of his client, she replied that if he did she could send him a “sick note.”He also stated that she attempted to avoid service of the subpoena and that she was obsessed with the payment of her fees.
On the 25th June, 1982, the defendant sent a copy of this letter to the secretary of the Irish Medical Association (“the I.M.A.”) with a covering letter making a formal complaint against the plaintiff:
(1) of a willingness alone or in conspiracy with other members of the medical profession to falsify a medical certificate on her behalf;
(2) of a lack of integrity demonstrated in the misleading complaint she made to the Law Society against the defendant; and
(3) of demanding exorbitant fees and expenses for a court appearance.
The secretary of the I.M.A. acknowedged that letter and stated that his Association had no function in relation to such complaints, which were a matter for the Medical Council.
The defendant on the 13th July, 1982, wrote to the secretary of the Medical Council in terms identical to those contained in his letter to the secretary of the I.M.A. and enclosed a copy of his letter of the 24th June, 1982, to the Law Society. The Medical Council sought the observations of the plaintiff upon the complaint made by the defendant and, having considered them, took no action on the complaints.
On the 5th June, 1985, the solicitors for the plaintiff wrote to the defendant claiming an apology, compensation and the payment of costs. In a portion of this letter the claim appeared to be for an apology and costs only. This request was repeated but no reply was made by the defendant to any of the letters. These proceedings were then instituted.
The plaintiff claims damages for libel in respect of (1) the letter written to the Law Society; (2) the letters written and sent to the I.M.A.; and (3) the letters written and sent to the Medical Council. The defendant in his defence, in addition to certain denials, pleaded that the letters complained of were all written without malice on occasions of qualified privilege and furthermore pleaded justification of the allegations (a) that the plaintiff threatened, if served with a subpoena, to send a sick note; (b) that the plaintiff made a misleading complaint to the Law Society; and (c) that the plaintiff demanded for appearance in the High Court fees that were exorbitant.
The action was tried in the High Court by a judge sitting with a jury. At the conclusion of the evidence for the plaintiff an application was made by the defendant to withdraw the case from the jury. The learned trial judge then ruled that while he was satisfied that it had been established that the writing of the letter to the Law Society and to the Medical Council were each occasions of qualified privilege, since it had not been established that the plaintiff was a member of the I.M.A., he (the judge) could not hold that the sending of the letters to that body was an occasion of qualified privilege unless the defendant in evidence established that he had an honest belief that the I.M.A. was the appropriate body to which to make a complaint concerning the conduct of the plaintiff. Accordingly, he decided that the defendant had a case to meet.
Upon the conclusion of the evidence for the defendant the application for a dismiss was renewed. The learned trial judge then ruled that the defendant had an honest belief that the I.M.A. was the appropriate body and that accordingly all the letters were published on occasions of qualified privilege. He further ruled that there was no evidence in respect of any of the letters complained of, which a jury could infer was more probably consistent with malice than otherwise, and that accordingly the case must be dismissed. Against these findings and this order the plaintiff appealed to this Court on a number of different grounds.
The submissions made on behalf of the plaintiff in the course of the appeal can, however, be summarised under the following broad headings.
1. In the absence of proof by the defendant of an actual interest in the I.M.A. in receiving the complaint, no occasion of qualified privilege exists in respect of the letters sent to that body; honest belief by the person publishing the statements complained of being incapable in law of creating such privilege.
2. The claim concerning the letters sent to the I.M.A. should therefore have been left to the jury, subject only to the defences of denial and justification.
3. In ruling on the issue of malice the learned trial judge erred in law in that having considered a number of alleged separate instances of malice, he concluded that there was no case to be left to the jury because the plaintiff had failed to prove the probability of malice in more instances than she had succeeded in so proving.
4. That even if the learned trial judge applied the correct test to the issue of malice to be left to the jury, he erred in concluding that it had not been established in one or more particulars as a probability which should have been left for their consideration.
On behalf of the defendant it was contended:
1. That on the admitted and uncontroverted evidence the defendant’s plea of justification had succeeded and, even though that was not the basis on which the case was dismissed in the High Court, this Court should, if satisfied that that was the legal position, dismiss the appeal.
2. That the proper test in law which should be applied to the defence of qualified privilege in respect of publication to the I.M.A., was that if it were established to the satisfaction of the learned trial judge that the defendant had an honest belief in the fact that this was a body with an interest in receiving the complaint and that if he had taken reasonable care in all the circumstances of the case in arriving at that belief, in law the occasion was the subject of qualified privilege.
3. In the alternative, that proof of the fact that fees due to the plaintiff were paid by the defendant’s client through the medium of the I.M.A. was sufficient proof of an interest in that body in receiving a complaint at least with regard to the charging of exorbitant fees.
4. That none of the items of evidence relied upon by the plaintiff as proof of malice, either viewed individually or collectively, constituted evidence more consistent with malice than otherwise.
In respect of the issues raised by these submissions I have come to the following conclusions.
Plea of justification
The plaintiff made the following admissions in evidence relevant to this issue:
(a) That when the defendant stated that he would be obliged to have a subpoena served upon her she said she would send him a sick certificate.
(b) That when a person came to serve a subpoena on her in her consulting rooms she heard the receptionist stating that she (the plaintiff) was not in, although she was standing in an adjoining corridor and was aware of the purpose of the visitor, namely, to seek; to serve a subpoena: she did not correct her receptionist.
(c) That she did not pay a consultant any fees to carry out her duties on the occasion of her absence from Cork to attend the High Court in Dublin.
I am not satisfied that these admissions necessarily constitute conclusive evidence justifying all the charges made in the correspondence against the plaintiff. They are, in my view, capable of being accepted by a jury as such justification or capable of being accepted as failing to justify the charges made. I therefore conclude that there are no grounds upon which this Court could decide this appeal on the issue of justification.
Qualified privilege in respect of the letters to the I.M.A.
There does not appear to be any direct Irish authority on the question as to whether an occasion of qualified privilege can arise where there is not actually an interest or duty in the person to whom a matter is published, although the person making the publication honestly believes that there is. In Waring v. McCaldin (1873) I.R. 7 C.L. 282 FitzGerald B. at p. 288 in the course of a ruling on a plea of demurrer stated as follows:
“If, without express malice, I make a defamatory charge, which I bona fidebelieve to be true, against one whose conduct in the respect defamed has caused me injury, to one whose duty it is, or whose duty I reasonably believe it to be, to inquire into and redress such injury, the occasion is privileged, because I have an interest in the subject matter of my charge, and the person to whom I make the communication has, on hearing the communication, a duty to discharge in respect of it.”
A consideration of the report of the entire proceedings in that case clearly indicates that the statement which I have quoted from the judgment of FitzGerald B., in so far as it dealt with reasonable belief, was obiter to the issues arising for decision.
In Jenoure v. Delmège [1891] A.C. 73 which was an appeal to the Judicial Committee of the Privy Council from the Supreme Court of Jamaica, Lord Macnaghten at p. 77 stated as follows:
“The Chief Justice went on to tell the jury that the proper authority to whom such a complaint should have been submitted was the superintending medical officer; but he also told them that, if they thought that the appellant had addressed the letter to the inspector of constabulary by an honest unintentional mistake as to the proper authority to deal with the complaint, then the communication would not be deprived of any privilege to which it would have been entitled had it been addressed to the superintending medical officer. So far the summing-up seems to be open to no objection.”
The case in which this statement occurs was one in which the point on appeal before the Privy Council concerned an alleged misdirection by the Chief Justice of Jamaica to a jury on the question of privilege.
In Hebditch v. MacIlwaine [1894] 2 Q.B. 54 the Court of Appeal in England decided that it was not sufficient that the maker of a statement honestly and reasonably believes that the person to whom it is made has an interest or duty to receive it in order to create an occasion of qualified privilege but that the actual existence of such duty or interest must be proved. This decision has since been followed in England and is quoted with approval in successive editions of Gatley on Libel and Slander being referred to at para. 507 of the 7th edition. It was referred to by Black J. in a judgment which dissented on other issues in Kirkwood Hacken v. Tierney [1952] I.R. 185. The principle that in order to establish an occasion of qualified privilege it is necessary to prove the actual existence of a duty or interest in the person to whom the statement is communicated was clearly accepted by the former Supreme Court in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 as well as in Kirkwood Hackett v. Tierney .
There does not appear to have been raised in any case before this Court or before the former Supreme Court the question as to whether an occasion of qualified privilege could also be established by proof of an honest belief in the person publishing the statement formed with reasonable care as to the interest or duty of the person to whom he communicates. In the decision of the House of Lords in London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15 it was decided that upon an enquiry being made to a person as to the financial circumstances and credit of a trader, that person is justified in giving such information and is deemed in law to do so on an occasion of qualified privilege provided that (1) he bona fide believes in the truth of the information which he gives, and (2) he bona fide believes that the person making the enquiry has an interest which justifies the enquiry. I am not aware of this decision having been considered by any Irish court. If it were possible and desirable to extend the principle laid down in London Association for Protection of Trade v. Greenlands Limited to circumstances other than the credit of traders and even, as is urged in this case, to circumstances where an enquiry is not made, it would quite clearly be fundamental to any principle so developed that a person volunteering such a statement would take the utmost care in ascertaining as to whether the person to whom he was communicating it had an interest or duty to receive it.
In the instant case the defendant, a solicitor, before writing to the I.M.A. took, on his own evidence, no step of any description to ascertain whether they were the appropriate body to which a complaint with regard to misconduct on the part of a doctor should be made. It is quite clear that either a reference by him to the Medical Practitioners’ Act, 1978, or an enquiry made without involving the mentioning of any name to the I.M.A. itself as to whether they were the appropriate body, would have yielded the immediate information that the appropriate body to whom such a communication should be made was the Medical Council. In these circumstances, I am satisfied that even if a defence of qualified privilege can be established in the manner submitted on this appeal by the defendant, that on the facts of this case it could not conceivably arise, and I prefer not, in those circumstances, to express any view as to whether it is part of the law, or, if it is, the circumstances which would give rise to it.
Having regard to the consequences of the publication of such information I take the view that a mere honest belief in the appropriateness of the recipient is not sufficient under any circumstances to create privilege and since the decision of the learned trial judge that the publication to the I.M.A. was privileged seems to have rested upon that principle, it was, in my view, in error.
With regard to the submission made on behalf of the defendant, that the receipt by the I.M.A. from the defendant’s client of the fees due to the plaintiff which it transferred to her was proof of an actual duty or interest in the I.M.A. to receive these letters, I am satisfied it must fail. The only evidence of the circumstances surrounding this payment was the production of a bank draft, apparently endorsed by the I.M.A. and cashed by the plaintiff. Such evidence falls very far short indeed of the onus of proof which was upon the defendant of proving a relevant duty or interest in the I.M.A. to receive the communication concerned.
I am, therefore, satisfied that the publication of these letters to the I.M.A. should have been left to the jury without any issue on the question of malice concerning it.
Rulings on malice
I am satisfied that, although there are some difficulties in accurately understanding from the transcript of the trial what precisely was said by the learned trial judge in his ruling, there are no grounds for the submission made on behalf of the plaintiff, to the effect that the learned trial judge’s ruling on malice should be interpreted as a consideration of each separate item of evidence alleged by the plaintiff to constitute evidence of malice and a ruling that the matter should not be left to the jury because in more instances the plaintiff had failed to establish a probability of malice than in the instances in which she succeeded. The first submission made with regard to the issue of malice on behalf of the plaintiff must therefore fail.
With regard to the more general submission, the position would appear to me to be as follows. It was agreed by counsel for both the plaintiff and defendant in this case that the appropriate test for malice was that laid down in the judgment of O’Byrne J. in the former Supreme Court in the case of Kirkwood Hackett v. Tierney [1952] I.R. 185. This, firstly, was that a trial judge should leave an issue of malice to the jury only if he was satisfied that the evidence given was more consistent with the existence of malice than with its absence, or to put the matter in another but identical way, that the existence of malice, as a matter of probability, was an inference which the jury would be entitled to draw from the evidence given. Secondly, that judgment appears to establish that, as was stated by O’Byrne J. at p. 204, having recited the principle laid down by Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449:
“Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is, in itself, evidence of malice.”
I do not construe this second proposition as prohibiting a trial judge from having regard to different pieces of evidence which appear to him to be interrelated so as to reach a conclusion as to whether the evidence supports the probability of malice in the manner which I have indicated above. Rather do I construe it as simply laying down a principle which may indeed be of more general application than merely to the question of a judge’s ruling concerning malice, that a number of separate items of evidence establishing a mere possibility of the existence of malice cannot by reason of their multiplicity alone convert that mere possibility into a probability.
In the instant case the plaintiff relied in the court below and relies in this appeal on a number of separate portions of the evidence as constituting evidence of the probability of malice. Some of those may well be capable of being considered interrelated. The main matters upon which reliance was placed may be summarised as follows.
1. Delay on the defendant’s part in making any complaint to anybody concerning the plaintiff’s conduct until such time as the plaintiff had herself made a complaint with regard to the defendant to the Law Society.
2. The length and scope of the defendant’s letter to the Law Society which it is alleged was so far outside necessary or relevant comment on the matters contained in the plaintiff’s letter to the Law Society as to constitute evidence of a motive of revenge or retaliation rather than a motive of a duty to make the complaint concerned.
3. The violence of some of the language used in the letter, particular complaint being made of the allegation that the plaintiff was a person who held scant regard for professional ethics and even less for the solemnity of the law; that she was obsessed with her fees and that she was guilty of duplicity and a lack of integrity in the contents of her letter written to the Law Society.
4. It was asserted that the reference in the letter to the Law Society setting out the history of the family law case giving rise to the request to the plaintiff to give evidence could be construed as a slur on the plaintiff’s professional competence in that it could be construed as indicating that the unfortunate history of the wife in the family law case was due to inappropriate advice or treatment.
5. The failure of the defendant upon request to comply with the demand made on behalf of the plaintiff prior to action for an apology, compensation and the payment of costs or even for an apology and the payment of costs.
6. The plaintiff also relied on the fact that copies of the correspondence sent to the Law Society, to the I.M.A. and to the Medical Council were sent by the defendant to the plaintiff as indicating some element of spite or hostility towards her from him.
With regard to these various allegations of malice I have come to the conclusion that the learned trial judge erred in law in holding that it would not have been open to a jury to reach a conclusion that the probability of the existence of malice in the communications made by the defendant was established by the length and scope of the letter written by him to the Law Society, having regard to the matters on which that Society asked for his comments and the violence of some of the language used in that letter. In reaching this view I am, of course, expressing no opinion as to whether I would accept from all the facts of this case that malice was proved, but rather expressing a view on the legal question which fell to be determined by the learned trial judge as to whether the probability of malice was an inference open to the jury on the evidence which was given.
It is quite clear that the failure or refusal of the defendant to apologise and pay costs, with or without compensation, could not be evidence of malice, having regard to the defence which he subsequently filed in the proceedings of justification. I do not construe the portion of the letter dealing with the history of the treatment by the plaintiff of the wife in the family law case as containing an implication that that treatment was incompetent or negligent, and I do not consider that this was an item of malice which should have been left to a jury. The sending by the defendant of copies of the letters to the plaintiff could not be evidence of malice. Quite clearly the fact that the defendant made no complaint concerning the conduct of the plaintiff until such time as she made a complaint to the Law Society is inter-related with the alleged violence of language contained in his letter to the Society and can be considered with it.
Having regard to the conclusions set out by me in this judgment I am satisfied that this appeal should be allowed and that a new trial of this action should be ordered in accordance with the principles which I have set out in this judgment.
Henchy J.
The plaintiff is a consultant psychiatrist practising in Cork. The defendant is a Cork solicitor. In 1982 the defendant, who was acting as solicitor for the husband in family law proceedings in the High Court, served a subpoena on the plaintiff requiring her to attend the hearing of the case in Dublin and to give evidence for the husband. She attended but was not called as a witness, as the case was settled. When she returned to Cork she sent the plaintiff a bill for £300 in respect of her fees. The defendant’s reply was to ask for a breakdown of that sum. There is no evidence that he took any step to provide for her fees. The plaintiff, feeling aggrieved, wrote to the Incorporated Law Society on the 3rd June, 1982, enquiring if there were any guidelines as to subpoenas served on professional people, complaining of the defendant’s conduct and asking for the Society’s help in recovering her fees.
The Law Society having sent him a copy of this letter, the defendant wrote a long letter to the Society on the 24th June, 1982, giving his version of events, attacking the plaintiff for her “scant regard for professional ethics and even less for the solemnity of the law”, accusing her of threatening to give him a “sick note”if he served a subpoena on her, and complaining that she was obsessed with the payment of her fees.
On the following day the defendant sent a copy of that letter to the Irish Medical Association (“the I.M.A.”) with a covering letter in which he made a formal complaint against the plaintiff, alleging unethical conduct in regard to the”sick note”, lack of integrity as evidenced by her letter to the Law Society, and professional impropriety in that she had demanded exorbitant fees. The secretary to the I.M.A. wrote in reply saying that the I.M.A. had no jurisdiction in the matter and that a complaint such as his was for the Medical Council. The defendant then wrote to the Medical Council repeating the complaints he had made in his letter to the I.M.A. and enclosing a copy of his letter to the Law Society.
The present proceedings have been brought claiming damages for libel against the defendant in respect of (1) the letter he wrote to the Law Society, (2) the letter he wrote to the I.M.A. enclosing a copy of his letter to the Law Society, and (3) the letter he wrote to the Medical Council enclosing a copy of his letter to the Law Society. At the end of the hearing in the High Court the judge withdrew the case from the jury and entered judgment for the defendant. The plaintiff now appeals.
The defendant pleaded justification, but the question of justification does not arise in this appeal. We are concerned only with the question whether the judge correctly ruled that all three occasions of publication were occasions of qualified privilege and that the plaintiff had failed to show that it would be open to the jury to hold that, on the balance of probabilities, the defendant was actuated by malice and had therefore lost the benefit of the qualified privilege.
On the hearing of the appeal it appeared that the parties were agreed that the occasions of the sending of the letter to the Law Society and the sending of the letters to the Medical Council were occasions of qualified privilege. It is common case that the defendant had a right or duty to send those communications and that the Law Society and the Medical Council had a reciprocal duty or interest in receiving them. The only question, therefore, arising in this appeal, in regard to those two communications, is whether there was evidence of malice which was fit to be considered by the jury.
The third communication, namely that sent to the I.M.A., is in a different position. The parties are not agreed that this was a privileged occasion. Counsel for the plaintiff relies on the long-established general rule that an occasion of qualified privilege cannot exist unless the person receiving the communication has in fact a legitimate duty or interest in connection with the subject-matter, and he says that no such duty or interest on the part of the I.M.A. existed here. Counsel for the defendant submitted in reply that the I.M.A. was not without an interest in the complaint made, and that even if it had no interest, the occasion was still one of qualified privilege because the defendant honestly and reasonably believed that the I.M.A. had such an interest.
I am satisfied that the I.M.A. had no legitimate interest in receiving this communication from the defendant. The purpose of the communication was to instigate a disciplinary inquiry by the I.M.A. into the serious matters complained of. But the I.M.A. had no jurisdiction to hold such an inquiry. Such limited powers as it had were exercisable only in respect of its members, and the plaintiff was not even a member. The secretary to the I.M.A. replied to the defendant’s complaint by saying, quite correctly, that it was a matter for the Medical Council. Had the defendant consulted the Medical Practitioners Act, 1978, or made the appropriate inquiries, he would have known that to be so. He imprudently and without due consideration made his complaint to a body which had no legitimate interest in the subject-matter of the complaint. His counsel was driven to falling back on the fact that the I.M.A. eventually sent the plaintiff a cheque in discharge of her fees for attending court, thus, it was suggested, pointing to its interest in the matter. I am satisfied, however, that this cheque was only a method of payment of the fees and that it cannot be treated as vesting in the I.M.A. an interest or duty which even the I.M.A. itself admitted it had not got.
In those circumstances this Court is being asked to hold that the communication sent by the defendant to the I.M.A. is protected by qualified privilege because, although the I.M.A. in fact had no duty or interest in the matter, the defendant honestly and reasonably believed that it had. However, such a version of the law would run counter to two Supreme Court decisions: Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. While the point does not seem to have been specifically argued in those cases, it is clear from the observations made in the judgments that the Court in each of those decisions was firmly of the opinion that an occasion of qualified privilege cannot exist unless the person making the communication has a duty or interest to make it and the person to whom it is made has a corresponding duty or interest to receive it. It would require exceptional circumstances before this Court should overrule such a clearly held and repeatedly expressed opinion.
I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Article 40, s. 1, sub-s. 3 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Article 40, s. 6, sub-s. 1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.
I consider, therefore, that the only part of the defendant’s submission which warrants serious consideration is the contention that a defendant is entitled to the defence of qualified privilege if he honestly and reasonably believed that the person to whom he published the words complained of had a duty or interest as to the matters referred to in the communication.
Despite the obvious attractiveness of the suggested formulation of the law of qualified privilege, I am not prepared to support the overruling of Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 to the extent required by the defendant’s submission. In the first place, I am not satisfied that the proposed formulation would be correct for the generality of cases of qualified privilege. Occasions of qualified privilege arise in a wide variety of relationships – legal, social and moral – and in an extensive range of circumstances, and the single formulation suggested might not be suitable for all of those occasions. For example, even the existing general rule, that it is necessary for qualified privilege that the recipient of the communication have a duty or interest in regard to the communication, is waived in certain cases where the communication is made by a person replying to an inquiry as to the credit of another: see London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15, 42. It may be that many other exceptions or qualifications are called for. The general rule suggested may prove to be unsuitable or unjust in certain cases. I am not persuaded that it would necessarily he an improvement on the present formulation in many cases.
Secondly, I consider that a previous decision of this Court, be it the Court established by the Courts (Establishment and Constitution) Act, 1961, or the Court in its earlier form, should not be overruled unless the point at issue has been duly raised and adequately argued. The formulation now suggested was first advanced to this Court by counsel for the defendant when replying to the submissions of counsel for the plaintiff. The latter did not find it necessary to deal with this point, relying as he was on the law as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. The result is that we are being asked to overrule part of those decisions, on what has turned out to be an ex parte argument. I find that unsatisfactory, particularly having regard to the possible but unknown ramifications of the suggested change in the law.
Thirdly, I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice. If the suggested version of the law were to be applied, the test as to whether the defendant’s communication to the I.M.A. was made on a privileged occasion would be whether he honestly and reasonably believed that the I.M.A. had jurisdiction to deal with his complaint. I do not doubt that he acted honestly, but I am equally satisfied that he did not act reasonably in making that communication. A reasonable solicitor of eleven years standing (which was the span of his experience) would not have sent a letter of complaint to the I.M.A. alleging serious professional misconduct by a doctor, without taking at least some precautions to ensure that the I.M.A. was the appropriate body to deal with the complaint. Yet he seems not to have taken any step to verify his impression that the I.M.A. had competence in the matter. A belief so casually and carelessly founded could not be held to be reasonable. Consequently, even if the suggested test were to be applied, it would avail the defendant nothing. The occasion would still have to be held not to have been privileged. If the law as to qualified privilege as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 were to be overruled, it would be of no consequence for the purpose of this case. As was stated by this Court in Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260 an overruling of a previous decision of this Court, whether it be the pre-1961 Act or the post-1961 Act Court, should take place only when it is necessary for the purpose of doing justice. That requirement is absent in this case. Even if the Court were to restate the law as requested, such restatement would be only obiter.
I would hold, as regards the communication to the I.M.A., that the trial judge incorrectly ruled that it was made on a privileged occasion. The case should have gone to the jury to determine whether the two letters in question (or any part of them) were defamatory, to decide to what extent (if any) the plea of justification had succeeded, and, if required by the findings on those matters, to assess damages.
As to the communications to the Law Society and the Medical Council, those were clearly made on occasions of qualified privilege. However, the trial judge held that the evidence was such that it would not be open to the jury to hold as a matter of probability that the defendant was actuated by malice. Being therefore of the opinion that the plea of qualified privilege prevailed, he withdrew the case from the jury. I think that was an incorrect ruling. It is well established that the defence of qualified privilege will be defeated if it is shown by the plaintiff as a matter of probability that the defendant, in communicating the words complained of, acted out of what is known in law as malice. Malice in that sense will be shown if the defendant acted from any indirect or improper motive, not merely personal spite or ill-will, which shows that the reason for which the occasion is recognized as privileged has been exceeded or violated.
When a libel or slander action is tried with a jury it is for the judge to decide whether the evidence is such as would reasonably entitle the jury to hold, as a matter of probability, that the publication was actuated by malice, in the legal sense, on the part of the defendant. Where the plaintiff, on whom the onus of proving malice lies, points to a number of examples of malice in regard to the publication, the judge must allow the case to go to the jury if it would be reasonable for the jury to hold as a matter of probability that any one of those instances represents malice. However, if no one of the instances pointed to could reasonably be held by the jury to amount to malice, the case should be withdrawn from the jury, because it would not be open to the jury to hold that a number of instances, no one of which could in itself be held to evidence malice, could in their aggregate amount to malice. The law to that effect was stated by Lord Porter in Turner v. Metro-Goldwyn-Meyer Pictures Ltd. [1950] 1 All E.R. 449, 455:
“. . . each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances.”
I respectfully adopt that statement of the law, which has been applied in a number of subsequent English cases and which was expressly approved by O’Byrne J. in Kirkwood Hackett v. Tierney [1952] I.R. 185. Since the judgment of O’Byrne J. was the effective judgment of the Court in that case, even if I disagreed with that version of the law I would not be free to refuse to follow it. Thus, if no one of the examples of malice relied on by the plaintiff in this case could reasonably have been held by the jury on the balance of probabilities to amount to malice, the judge would have been correct in withdrawing the case from the jury. On the other hand, if any one example could reasonably as a matter of probability be treated by the jury as showing malice, the case should have been allowed to go to the jury.
In my view the judge wrongly withdrew the case from the jury. There were a number of matters which a properly directed jury could justifiably have held to amount to malice. Without going into detail, I would point to the timing, the tone and the contents of the letters, the nature of the language used, the range and breadth of the complaints, and the fact that what began as a defence to a complaint made about the defendant to the Law Society was converted by him into an attempt to establish professional misconduct on the part of the plaintiff. I refrain from going into specific instances, for their weight depends in one degree or another on the actual evidence given at the trial, and since in my view there must be a new trial, in which the evidence may be appreciably different, any comments as to the import of the evidence already given may be misleading in the context of the new trial.
Since it is my opinion that there was a case to go to the jury as to each of the three communications, I would allow this appeal and order a new trial.
Griffin J.
I agree with the judgment of the Chief Justice.
Hederman J.
I agree with the judgment of Henchy J.
Community Television Broadcasting Co. Lt v. Minister for Transport, Energy and Communications;
Community Television Broadcasting Co. Ltd t/a South Coast Community Television Broadcasting Service and Gabriel Hurley v. Minister for Transport, Energy and Communications; Minister for Arts, Culture and; the Gaeltacht; Ireland; Attorney General and; Cork Communications;
1994 No. 62P Carrigaline
The constitutional validity of the licensing provisions of the 1926–1988 Acts
It was submitted on behalf of the plaintiffs that the relevant provisions of the 1926–1988 Acts and related regulations were invalid having regard to the provisions of the Constitution on two grounds; first, that the licensing structure was in breach of the fundamental rights of the plaintiffs, and secondly, that it involved an impermissible and unconstitutional delegation of the legislative power of the Oireachtas to the minister. In this regard, it was submitted on behalf of the plaintiffs that the licensing system adopted by the minister violated the fundamental rights guaranteed to them expressly under the provisions of Article 40.6.1° i and by implication under Article 40.3 . In addition, they submitted that the system also contravened the State’s obligation under Article 40.3.2° to protect and vindicate the property rights of the plaintiffs. They further submitted that, to the extent that the relevant provisions and regulations authorised such a system, they were invalid having regard to those Articles of the Constitution or, in the case of the legislation which predated the Constitution, were inconsistent with those provisions of the Constitution and hence no longer formed part of our law. It was further submitted that ss. 5 and 6 of the 1926 Act constituted an impermissible delegation of legislative power to the minister by the Oireachtas and that they were accordingly inconsistent with the provisions of Article 15.2 of the Constitution.
It was submitted on behalf of the defendants that a licensing system per se could not amount to an infringement of the right to freedom of expression and that this had been accepted by implication by the plaintiffs. It was further submitted on behalf of the defendants that a system whereby the constitutional rights in question were regulated did not amount to an abrogation of those rights and hence was not per se invalid. In addition, it was submitted that no basis had been established for the claim that the property rights of the plaintiffs’ had been violated. It was submitted that a legislative provision which diminished the extent of the citizen’s property rights was not of itself unconstitutional provided that the restriction was socially just and subserved the exigencies of the common good. As to the argument that ss. 5 and 6 of the 1926 Act constituted an impermissible delegation of legislative power to the minister by the Oireachtas, it was submitted on behalf of the defendants that the granting of licences was not an exercise of legislative power, but rather an administrative function which had to be exercised in accordance with constitutional principles and the principles of administrative law.
iv.
The Competition Act 1991 and Articles 59, 85 and 86 of the Treaty of Rome
It was submitted on behalf of the plaintiffs that the minister was an ‘undertaking’ within the meaning of ss. 4 and 5 of the 1991 Act and that as such an undertaking he had entered into an agreement which had both the object and effect of restricting competition in breach of s. 4 of the 1991 Act. It was also submitted that he was in a ‘dominant position’ in the relevant market within the meaning of s. 5 and had ‘abused’ that position within the meaning of s. 5 since he alone could determine whether a licence should be granted.
With regard to Articles 85 and 86 of the Treaty of Rome , it was submitted that the relevant trade for the purposes of those articles was the provision in the State, by way of rebroadcasting, of television programme services originating primarily, but not exclusively in the United Kingdom and that it followed that a restriction on such transmission could effect ‘trade between member states’ with the result that Article 85 was capable of application. It was submitted that the granting of the licences constituted an agreement which had, as its object or effect, the prevention, restriction or distortion of competition within the common market. Since the restriction affected the area of a member state, it was submitted that the minister had a dominant position ‘within the common market or in a substantial part of it’ . It was submitted that the considerations which had influenced the minister in establishing the MMDS licence scheme were not considerations of strategic state interest or of the common good such as were envisaged by Article 90(1) and that, accordingly, the minister’s activities were not saved by the provisions of that article.
While it was conceded on behalf of the defendants that the minister was a body corporate within the meaning of s. 3 of the 1991 Act, it was submitted that he was not engaged in the production, supply or distribution of goods or the provision of a service within the meaning of s. 3 . It was further submitted on behalf of the defendants that there was no evidence that the minister’s activities in relation to the granting of licences had any effect on trade between member states to any appreciable extent. Nor was there any evidence that the abuse complained of was an abuse within the common market or a substantial part of it. The defendants also submitted that there was no evidence that any of the minister’s activities had as their object or effect the prevention, restriction or distortion of competition in trade. The defendants further submitted that the plaintiffs’ argument that an agreement which on its face purported to be exclusive must necessarily be regarded as having both the object and effect of restricting competition, ignored the fact that the Court of Justice had long since rejected the proposition that such agreements were per se contrary to community law.
v.
The European Convention on Human Rights and Fundamental Freedoms
The plaintiffs submitted that, while the provisions of the European Convention did not have the force of law in the State, this did not mean that the European Convention , as interpreted by the Court of Human Rights of the Council of Europe, was wholly irrelevant. They submitted that the provisions of Article 10 of the European Convention guaranteeing the right to freedom of expression, but permitting the states to require the licensing of broadcasting, television or cinema enterprises, had been recognised by the Court of Human Rights as having a special significance. They also pointed out that the European Court of Justice had on many occasions ruled that the rights protected by the European Convention are part of the legal order of the European Union. The use of a licensing system to confer monopoly rights was not, they submitted, a legitimate regulatory act and was not compatible with Article 10 , save where there was a pressing social need, the onus of establishing the existence of which was on the State.
It was submitted on behalf of the defendants that the decisions of the European Court of Human Rights relied on by the plaintiffs lent no support to their submissions. Article 10 , it was urged, expressly envisaged the licensing of broadcasting by the states and explicitly recognised that licensing of itself does not abrogate any right to freedom of expression, but rather regulates the exercise of that right.
Corway v. Independent Newspapers (Ireland) Limited
[1999] IESC 5; [1999] 4 IR 485; [2000] 1 ILRM 426
1999, by Barrington J.
1. This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish Law.
2. The appeal is against the Judgment and Order of Geoghegan J., delivered and made herein on the 23rd day of October, 1996, whereby he refused the Applicant leave to institute a criminal prosecution for blasphemy against the Respondents pursuant to the provisions of Section 8 of the Defamation Act, 1961.
Section 8 of the Defamation Act, 1961 reads as follows:-
“No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application”.
FACTS.
3. The Applicant is a carpenter and resides at Harolds Cross, Dublin.
4. The first and second Respondents are the proprietors, and the third Respondent the Editor, of the “Sunday Independent” which is a weekly newspaper with a large circulation in Ireland.
5. On the 26th November, 1995 the Sunday Independent, in the wake of the divorce referendum, carried an article, by Dr. Conor Cruise-O’Brien, on the implications of that referendum. Associated with the article was a cartoon which depicted on the right a plump and comic caricature of a Priest. The Priest was holding a host in his right hand and a chalice in his left hand. He appears to be offering the host to three figures on the left hand side of the cartoon. The three figures are the prominent politicians Mr. Prionsias de Rossa, Mr. Ruari Quinn and Mr. John Bruton. But they are turning away and appear to be waving goodbye. At the top of the cartoon are printed the words “Hello progress – bye bye Father” followed by a question mark.
6. The words at the top of the cartoon are clearly meant to be a play upon a phrase used, during the referendum campaign, by some of the campaigners against divorce. That is to say “Hello divorce – bye bye daddy”.
7. The applicant maintains that the cartoon picture and caption appear calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the Eucharist and its administration as objects of scorn and derision.
He continues:-
“As one professing and endeavouring to practise the Christian religion through membership of the Roman Catholic Church I have suffered offence and outrage by reason of the insult, ridicule and contempt shown towards the sacrament of the Eucharist as a result of the publication of the matter complained of herein and I am aware of other persons having also so suffered. It is intended that the proposed charge of blasphemous libel shall refer in particular to the cartoon and captions hereinbefore exhibited”.
8. The Applicant says that he has been advised by Counsel and Solicitor and believes that the composition, printing and publication of the matter complained of could be held to constitute offences to which the provisions of Section 13.1 of the Defamation Act, 1961, will apply and that he has also been advised and believes that the subject matter of the application herein is such that there is a clear prima facie case for the Respondents and each of them to answer in the event of the matter coming before the Criminal Court.
Section 13.1 of the Defamation Act, 1961, provides as follows:-
“Every person who composes, prints or publishes any blasphemous…
libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years”.
9. The basic reason for Mr. Justice Geoghegan’s decision was that he did not believe that the facts complained of amounted to blasphemy. In other words he did not believe that there was any actus reus . But he said that had he believed that there was sufficient evidence of an actus reus he would have regarded the act of publishing as being evidence for the purpose of establishing mens rea and would not have required evidence of a specific intention to blaspheme.
CONSTITUTIONAL PROVISION.
10. The reference to blasphemy in the Constitution occurs in Article 40.6 paragraph 1 sub-paragraph (i). Significantly it appears as a reservation on the
“right of the citizens to express freely their convictions and opinions”. Having guaranteed liberty for the exercise of that right the Constitution goes on to provide that:-
“The publication or utterance of blasphemous… matter is an offence which shall be punishable in accordance with law”.
11. There is no definition of blasphemy in the Constitution nor is there any Act of the Oireachtas defining blasphemy. Mr. Murdoch in his dictionary of Irish Law (Topaz Publications Dublin 1988) defines blasphemy as follows:-
“The crime which consists of indecent and offensive attacks on Christianity, or the Scriptures, or sacred persons or objects calculated to outrage the feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law…. The mere denial of Christian teaching is not sufficient to constitute the offence”.
12. There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commissions Consultation Paper on “The crime of libel”.
BLASPHEMY AND COMMON LAW.
13. The Court would like to acknowledge its indebtedness to the researches of Counsel and of the Law Reform Commission on the history of the crime of blasphemy. We propose to consider first the evolution of the crime of blasphemy in England and then its evolution in Ireland. When the Common Law Courts took over jurisdiction in blasphemy from the Courts of Star Chamber and the Ecclesiastical Courts they seem to have started from the proposition that “Christianity is parcel of the laws of England”. Whether this was because they believed that the common law was founded on Christianity or whether it was that Christianity, in its Protestant form, was the established religion in England, is not clear. If they made the distinction they probably took the latter view. Sir Matthew Hale is reported as having said in Taylor’s Case (1 Ventris 293, 3 Keble 607) that
“Contumelious reproaches of God and of the religion established are punishable here…. the Christian religion is part of the law itself”.
14. Originally any challenge to the fundamentals of Christianity was regarded as blasphemous but, from an early stage the law sought to make room for controversies between learned men on the finer points of religion. Towards the end of the 19th century in Ramsay and Foote , Lord Coleridge held that even the fundamentals of religion could be attacked “if the decencies of controversy are observed”. [1883] 15 Cox C.C. 231. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd. in the year 1917 [1917] AC 406.
In Bowman’s Case, the House of Lords had to decide whether a bequest to the Secular Society which was a company formed for the purpose of promoting the view that “human conduct should be based upon natural knowledge, and not upon supernatural belief” was invalid as being a bequest for an unlawful purpose constituting the offence of blasphemous libel. The case brought to a head the debate as to whether the mere questioning of the truth of Christianity could be blasphemy or whether it was necessary that the attack should be couched in scurrilous language. As Lord Parker put the matter (at pg. 466):-
“In my opinion to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace”.
15. As long as the mere publication of an attack on Christianity amounted to blasphemy there was no necessity to consider the intentions of the author or the publisher because the mere words were regarded as revealing his intentions. This matter came to a head in Whitehouse v. Lemon [1979] 1 All ER 898 where the majority in the House of Lords held that an intention to publish blasphemous matter was sufficient mens rea to constitute the offence of blasphemy and that it was not necessary to prove a specific intention to blaspheme. Geoghegan, J. appears to have accepted this line of reasoning in his Judgment in the present case.
16. The speech of Lord Scarman contains the following remarkable rationale for the existence of an offence of blasphemy, at pp. 921-922:-
“… I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt…. I will not lend my voice to a view of the law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religious feelings from outrage and insult”.
IRELAND.
17. It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian Minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.
18. Speaking of this case, over a century later, Sir. Edward Sugden said:-
“… I am not called upon to give any opinion whether that prosecution was right or wrong; but it proves this, which is of great importance that as the law was then administered, it was blasphemy to deny the Divinity of Christ;”
A.G. v. Drummond (1842 ) 1 Or. and War. 353 at 384.
The case of John Syngean Bridgman [referred to in R. v. Petcherine (1855) 8 St. Ir. (N.S.) 1086 at 1087; 7 Cox C.C. 79 at 84] arose out of disputes between Roman Catholic clergy and Protestant Ministers in the middle of the 19th Century. In a fit of anger Bridgman, who was a Franciscan Friar, had apparently burnt a Protestant bible in public. The indictment against him certainly appears to reflect a view that any deliberate attack on the Protestant religion as by law established would amount to blasphemy. It reads, in part, as follows:-
“that he not having the fear of God before his eyes, but intending to scandalise and vilify the true Protestant religion, as by law established within these realms, and to blaspheme the Holy Gospel of God and of Our Saviour Jesus Christ… unlawfully, wickedly, and blasphemously, in the presence of divers liege subjects of our Queen, set fire to and partly consumed by fire a copy of the Holy Gospel of God, being the authorised version thereof, appointed to be read in Churches, called the New Testament; and then and there holding in his hands said New Testament, wickedly and blasphemously, in the presence and hearing of divers liege subjects, then and there pronounced and spoke with a loud voice, and published of and concerning said New Testament, as aforesaid, these profane and most blasphemous words, that is to say, that it (meaning the New Testament) is not the Word of God, but the Word of the Devil, and the Devil’s Book – Luther’s Bible, or your Heretic Bible -to the great dishonour of Almighty God, and in contempt of the Protestant religion, and to the great scandal of the profession thereof, and against peace, etc”.
[Rev. P. M’Loskey, The Trial and Conviction of a Franciscan Monk, at Mayo Srping Assizes, 1852, for burning and blaspheming the Holg Scriptures (Dublin, 1852), p.13]
19. However, Baron Lefroy, in charging the jury, seems to suggest that any burning of any version of the bible would be blasphemous although he does stress that the bible actually burned was the authorised version. He states as follows:-
“…you are to try whether the traverser is at liberty to indulge his uncharitable feelings under the plea of the conduct of others [there had been a suggestion that his action had been provoked by the activities of the Protestant missionaries], and, by his conduct insult Christianity itself…. It is for you to say whether these charges have been proved or not, and whether you are satisfied that he said he was not burning the Word of God, but the Word of the Devil, and whether the words were applied to the authorised version of the Scriptures; because whether it be the Douay Bible or the Rhenish Testament; and the words used would be blasphemous against either version, as showing a want of reverence for the Scriptures; because it is not the version of the Scriptures which will warrant the commission of such an offence. It is not because fallible man cannot agree upon the translation of a portion of the Scriptures, that they are to be treated with this want of reverence; that because it is not a particular translation, it shall be treated with such vilification. Is to be held that, when the law of the land sanctions a certain version, and calls it the authorised version, it is to be said that any man, be his opinions what they may, shall pour contempt upon it, and thus be guilty of a violation of the law? Is he to be at liberty to throw that book into the fire, and say that he vilify that book which the law has sanctioned? It has been said to you that this act must be done with intent, and on that the law is clear; every man is presumed to understand the consequences of his own acts. If a man can throw a book into the fire, whether it be the Douay Bible or the authorised version, and if you believe that he did not intend any contempt, then you should acquit him: But if you believe that he did burn the book , and made use of the language it will be your duty to find him guilty”.
[Rev. P. M’Loskey, op. cit. , pp 26-27]
20. Another case involving bible burning occurred later in 1855. The accused was a Redemptorist Father who had delivered a series of sermons in Kingstown (as it then was) aimed at discouraging people from reading “evil” literature. He invited his listeners to collect together any such literature they might find in their homes and to bring them to him for burning on a bonfire in the Chapel yard. Mr. Thomas O’Hagan Q.C., defending the Priest said:-
“And the people obeyed his call, and multitudes of books were brought to him – pamphlets in bundles – infamous periodicals which are the daily food of the popular mind in England – translations of sensual novels from the French, and vile English novels, whose very names are an abomination”.
[See Selected Speeches and Arguments of the Rt. Hon. Thomas, Baron O’Hagan (ed. G. Teeling, London, 1885), p. 261]
21. Unfortunately among the pile of books, unknown to the Rev. Father, was a copy of the bible.
22. On a prosecution of the Priest for blasphemy Baron Green told the jury that it did not matter which particular version of the bible had been burned. What was material was whether the Defendant intended to burn it. The Defendant was acquitted. [See Paul O’Higgins, Blasphemy in Irish Law,
(1960) 23 M.L.R 151, 162-163]
23. In 1869 the Church of Ireland was disestablished.
24. There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. (The Law Reform Commission’s Report put the last mentioned case in 1885 (See p17), but this appears to be a misprint for 1855.)
25. It is worth noting that all three prosecutions for blasphemy of which we have record in Ireland involved the prosecution of clergymen – one Unitarian Minister and two Roman Catholic Priests.
THE 1922 CONSTITUTION.
26. The 1922 Constitution was a totally secular Constitution. Article 8 of the Constitution provided (in part) as follows:-
Article 8. “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status….”
27. Article 9 provided (in part) as follows:-
Article 9. “The right of free expression of opinion… is guaranteed for purposes not opposed to public morality.”
28. The right of freedom of conscience, freedom of religion and freedom of expression as set out in the 1922 Constitution are wide enough to cover the views of citizens of all religions and of none. The tenets of any one religion do not enjoy greater protection in law than those of any other. There can be no question therefore of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality.
29. Article 73 carried forward the laws of the previous regime:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith”.
30. It is debatable to what extent, if at all, it carried forward the common law
in relation to blasphemy.
31. If the Church of England had been disestablished and if England had introduced a secular Constitution it is highly probable that the debate in the House of Lords in Whitehouse v. Lemon would have taken a very different course. That case would not, therefore, appear to be a safe guide for this Court to follow in the present case.
CONSTITUTION OF IRELAND.
32. The Constitution of Ireland re-enacted the provisions of the Constitution of the Irish Free State guaranteeing freedom of conscience and the free profession and practice of religion. It also re-enacted the provision prohibiting the State from imposing any disability or making any discrimination on the ground of religious profession, belief or status. It did however add a new Section in the following terms:-
Article 44.
1. 1° “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2° The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.
3° The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution”.
33. In 1972 the fifth amendment to the Constitution removed the second two sub-sections quoted above leaving the religious guarantee in effect, as it had been under the Constitution of the Irish Free State, but subject to the significant addition of the first sub-section quoted above.
34. The Constitution also introduced (in Article 40.I) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.I goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.
35. This constitutional framework is not dissimilar to that mentioned by Lord Scarman as desirable in the passage from his speech in Whitehouse v. Lemon quoted earlier in this Judgment. But as with Lord Scarman’s suggestion, though for different reasons, the implications of it for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established Church and an established religion could survive in such a constitutional framework. Certainly it is difficult to see how the view of the majority in the House of Lords in Whitehouse v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion.
36. There is no doubt that the crime of blasphemy exists as an offence in Irish Law because the Constitution says so. It says that the publication or utterance of blasphemous matter “is an offence which shall be punishable in accordance with the law”. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. The Censorship of Films Act, 1923 S.7 (2) and S.13 (1) of the Defamation Act, 1961 assume that the crime exists without defining it. It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.
37. From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or of Polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not? The following passage from the Judgment of Walsh, J. in Quinn’s Supermarket v. Attorney General [1972] IR 1 at p. 23 – 24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:-
“Our Constitution reflects a firm conviction that we are religious people. The preamble to the Constitution acknowledges that we are a Christian people and Article 44, s. 1, sub-s. 1, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44, s. 1, of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so”.
38. In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out neither the actus reus nor the mens rea is clear. The task of defining the crime is one for the Legislature, not for the Courts. In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the Respondents.
THE PRESENT CASE.
39. Mr. Brady, in the manner of an able advocate, got across to the Court the indignation which his client felt at what he perceived to be an insult to the Sacrament of the Eucharist.
40. The cartoon may indeed have been in very bad taste. But the Court having studied the cartoon and the article by Dr. Conor Cruise-O’Brien which it accompanies, is convinced that no insult to the Blessed Sacrament was intended and that no jury could reasonably conclude that such insult existed or was intended to exist. The theme of Dr. Conor Cruise-O’Brien’s article, whether well founded or not, was that the politicians had resisted the guidance of the Roman Catholic Church on the issue of divorce but that it was not equally clear that they would resist such guidance on future occasions. It appears to the Court that the cartoon was meant to illustrate this theme and no more. That is why the question mark is placed after the phrase “Hello progress – bye bye Father”.
41. The Court fully agrees with the opinion of the learned High Court Judge on this aspect of the case and will accordingly dismiss the appeal.
Oblique Financial Services Ltd v The Promise Production Co. Ltd
[1994] 1 ILRM 74
Keane J
This is an application under s. 11 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988, which provides:
(1) Where—
(a) proceedings have been commenced or are to be commenced in a contracting state other than the state, and
(b) they are or will be proceedings whose subject-matter is within the scope of the 1968 Convention as determined by article 1 (whether or not the 1968 Convention has effect in relation to the proceedings),
the High Court may, on application to it pursuant to article 24, grant provisional, including protective, measures of any kind that the court has power to grant in proceedings that, apart from this Act, are within its jurisdiction.
(2) On an application under subs. (1) of this section, the High Court may refuse to grant the measures sought if, in the opinion of that court, the fact that the court has not jurisdiction, apart from this section, in relation to the subject-matter of the proceedings in question makes it inexpedient for that court to grant such measures.
The background to the present case is as follows. The plaintiff is a company, incorporated in the United Kingdom, which according to the affidavit filed on its behalf in these proceedings, is essentially engaged in marrying financial sources with production sources and is thereby earning for the company fees from investment clients, particularly from film revenues. The plaintiff company entered into a contract with the first named defendant in these proceedings relating to the financing of a film, to be called ‘The Promise’. The plaintiffs say that the terms of that agreement are that what was described as ‘absolute and total confidentiality’ would be maintained by the parties to that agreement in relation to any information as to the transaction which they acquired as a result of entering into the agreement.
The plaintiffs say that the first and second named defendants are in breach of that agreement by disclosing certain information, which they acquired as the result of having entered into the agreement or in the negotiations preliminary thereto, to other persons, and the matter, which they say, that particularly concerns them is that the identity of an investor in this country was disclosed by the first and second named defendants to other parties. This, they say, is in clear breach of the agreement by the first and second named defendants to preserve absolutely confidentiality in relation to these matters.
The application for interim protective measures, under the section, to which I have referred, is brought solely against the third and fourth named defendants, who are publishers and editor, respectively, of the Phoenix Magazine, and who have indicated their intention to publish in a forthcoming issue, information disclosed to them, including the name of the investor, the identity of the investor in question.
On Friday last, Geoghegan J granted an interim injunction to the plaintiffs in these proceedings, which they indicated they intended to issue in the Queen’s Bench Division of the High Court of Justice of England and Wales, as against all the defendants. The application for the interim injunction was brought solely against the third and fourth named defendants, under the section of the Judgments Act to which I have already referred.
It is accepted by counsel for both the applicant and the respondent that the substantive case, the substantive proceedings are being instituted in an English court, and it will fall to be decided by that court in accordance with English law. However, the application, as envisaged by s. 11, and it is also accepted by counsel, must fall to be determined by this Court, in accordance with the principles of Irish law applicable to granting or withholding of an interlocutory injunction. As it happens, there is no significant difference in the law in this country and the law in England and Wales as to the principles that should be applied by the court in granting or withholding an interlocutory injunction, with one important proviso, and that is, but again, it has been agreed by counsel, that the court, cannot by its order, in an application of this nature, abridge the consitutional rights, the rights enjoyed under the Irish Constitution, by any of the parties to the action.
The plaintiffs instituted the proceedings, joining the third and fourth named defendants, relying on the doctrine of confidentiality laid down in a number of decisions both in this country and in England. The respondents to this application do not dispute the factual or legal basis of the claim against the first and second named defendants, but they make their own defence to the application on the straightforward grounds that they make the distinction between their situation and what they see as the situation which may or may not be the position in relation to the first or second named defendants. They say they owe no duty, contractual or otherwise, of confidentiality, to the plaintiffs. They also submit that their constitutional rights to freedom of expression would be infringed by the granting of an interlocutory injunction sought by or on behalf of the plaintiffs, under Article 40.6.1° of the Irish Constitution.
Now, the first issue that has to be determined is whether or not the plaintiff has established a serious question to be tried as against the third and fourth named defendants. I have no doubt but that it has established a serious question; and it is sufficient in this context to refer to the decision of the Supreme Court, upholding a decision of the High Court in the case of House of Spring Gardens Ltd v. Point Blank Ltd [1984] IR 611 in which the statement of the law by Costello J was upheld by the Supreme Court. In the Supreme Court, O’Higgins CJ cited his approval of the statement of the law by Lord Greene MR in Saltman Engineering Co. Ltd v. Campbell Engineering Co. Ltd (1948) RPC 203. He stated as follows at p. 695:
If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, expressed or implied of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.
Now, it is also obvious from the passages in a number of the cases referred to in that case and also cited in the course of the arguments here before me, that the obligation of confidentiality which is enforced by the courts, is not merely applicable to the parties to the contract, but also in relation to third parties who may also come into possession of that information. In this case a similar obligation arises, whether by reason of some contractual obligation or some moral obligation. It is obvious from the cases, and indeed it is a matter of common sense that the right to confidentiality, which the law recognises in these cases, would be of little value, if the third parties to whom this information has been communicated were at liberty to publish it to another party, or in this case, to publish it to the general public, without the court being in a position to intervene.
So, that being that statement of the law, both here in Ireland and in the United Kingdom, it is quite clear that the legal position would appear to be that the obligation of confidentiality of a company can be enforced as against third parties. It is again necessary to point out that this is a preliminary application, interlocutory in its nature and it is, therefore, not for this Court to express a final view on any of the matters which might be mentioned by any of the parties to this preliminary application. They will ultimately be determined by an English court in the substantive proceedings; but it is sufficient, for the purposes of this application by the plaintiffs, that a serious question is to be tried as to whether or not the third and fourth named respondents are also bound not to engage in publishing matters of confidentiality arising from the agreement between the plaintiffs and the other defendants.
As I indicated already, it was contended on behalf of the third and fourth named defendants that granting the injunctive relief would infringe the constitutional rights of the respondents as an organ of opinion under Article 40.6.1° of the Constitution. Clearly, if that submission were well founded then at this stage, irrespective of what might happen in the proceedings in England, it would not be appropriate for this Court to grant an injunction which would infringe the respondents’ constitutional rights.
However, this interpretation of the Constitution, is, in my view misconceived. It is clear from the decision of Costello J in the case of Attorney General v. Paperlink Ltd [1984] ILRM 373 that the rights of the respondents in a case such as this, flow not from Article 40.6.1°, dealing generally with freedom of expression, but from Aricle 40.3.1°, which guarantees the personal rights of the citizen. Article 40.6.1° is concerned, not with the dissemination of factual information, but the rights of the citizen, in formulating or publishing convictions or opinions, or conveying an opinion; and the rights of all citizens, including conveying information, arises in our law, not under Article 40.6.1°, but from Artcle 40.3.1°.
In my view, it is clear from the statement of the law by Costello J in that case of Attorney General v. Paperlink Ltd, that this right under the Constitution is not an absolute right, but one which is qualified, having regard to other legal constraints. And, in the course of his judgment in that case, Costello J says (at p. 381):
As to the assertion that there exists in the Constitution a ‘right to communicate freely it seems to me that this submission fails to take into account the distinction between a personal right guaranteed by the Constitution and the freedom to exercise a constitutionally guaranteed personal right, a distinction which is to be found throughout the entire Constitution and which is made explicit for example, in Article 40.6.1°. I will, therefore, consider whether ‘a right to communicate’ without the qualifying adverb ‘freely’ is embraced by Article 40.3.1°. It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1° (i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions, I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°.
But the right to communicate is obviously not an absolute one. Laws may restrict the nature of the matter communicated (for example, by prohibiting the communication of confidential information or treasonable, blasphemous, obscene or defamatory matter) and laws may also restrict the mode of communication (for example by prohibiting communication by advertisement contrary to the planning code or by radio contrary to wireless telegraphy regulations). It follows, therefore, that it is not correct, and indeed, can be seriously misleading, to suggest that the defendants enjoy a right to communicate ‘freely’. Along with other citizens they enjoy a right to communicate.
Now, applying those principles to the present case, the respondents’ right to communicate information must be subject to other rights and duties, and in particular, to the right of confidentiality enjoyed by, or alleged to be enjoyed by the plaintiff. Accordingly, while the substantive action remains to be determined by the English courts; if that court should find against the respondents it would not be a breach or an infringing of the constitutional rights of the respondents for the reasons which I have indicated.
This again, it must be emphasised, is a preliminary application to the court for interlocutory relief. It should be said, if the third and fourth named respondents failed in the proceedings in the English court, it would be open to them to resist any enforcement of the judgment in this Court on the ground of public policy. It is open to them at that stage to contest the enforcement by the court of the order on the ground that their constitutional rights are being infringed; that indeed, is conceded by counsel on behalf of the plaintiffs.
The next question is whether or not more damage would be caused by granting the injunction than by its being withheld. It has been submitted on behalf of the respondents, and it is recognised of course, that the damage they would sustain, by reason of non publication, is necessarily hard to quantify; and it is said on behalf of the respondents that the undertaking is not of any great value to them. That may well be so, and if that were to be the grounds for the withholding of the relief, the interlocutory relief, then it would apply to virtually every application of this nature where the respondents, if they were in the position, as the present respondents say they are, that as they were publishing newspapers or periodicals of any sort in which a considerable amount of material and information is regularly published, so it would be difficult for the respondents to quantify the position, if an injunction was wrongly granted, of the amount of any loss sustained by them. If that proposition were correct, then it would follow that in cases where breach of confidentiality arises it would in effect, be impossible for the courts to grant interlocutory relief, however unjust the consequences, if the respondents, were, as in the present case, publishers in magazines or periodicals, of a large volume of information and comment other than the impugned material. By contrast, it appears that the plaintiffs, quite clearly, by the very nature of their enterprise, and the importance that they attach to the confidentiality of the information arising in the course of such transactions, it is obvious that the plaintiff, if the case was well-founded, would indeed, suffer serious, and perhaps, irreparable damage, by the publication of material of this nature.
That would be sufficient to indicate that this is a case where interlocutory relief should issue, without considering where the balance of convenience lies. If I were to consider where the balance of convenience lies, the whole point of a case like this is to preserve the status quo pending the resolution of the action; and the status quo would be the non-publication of the material pending a decision by the English courts as to whether indeed the question of confidentiality arises. I will, accordingly accede to the granting of an interlocutory injunction, in the same terms granted by Geoghegan J on the application for an interim injunction, that will of course, be subject to the undertaking to the court, pending the resolution by the courts in England of the substantive issues.