Supporting Documents:

THE SUPREME COURT

DETERMINATION

RESULT: The Court grants leave to the Defendants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by Sunday Newspapers Limited, Colm MacGinty and Nicola Tallant who are the defendants in the underlying plenary proceedings in the High Court and are hereinafter referred to as “the Defendants”. Leave is sought by the Defendants to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Ryan P., Birmingham J. and Sheehan J.) delivered on 21st October, 2006 by Ryan P. ([2016] IECA 296), and the order of the Court of Appeal dated 21st October, 2016, which was perfected on 24th October, 2016.

1.2 As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment of the Constitution, it is necessary, in order for this Court to grant leave, that it be established to the satisfaction of this Court that the decision sought to be appealed either involves a matter of general public importance or that in the interests of justice it is necessary that there be an appeal to this Court.

1.3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

2.1 The underlying proceedings are plenary proceedings in the High Court (Record No. 2013 No. 11583P) brought by Patrick Benedict Gilchrist, hereinafter referred to as “the Plaintiff”, against the Defendants for defamation, which were listed for hearing in the High Court in the Civil Jury List on 3rd November, 2016 before a judge and jury and were to be heard following the hearing of plenary proceedings between Isabel Rogers as plaintiff and the Defendants (Record No. 2013 No. 11583P), hereinafter referred to as “the Rogers Proceedings”.

2.2 By notice of motion dated 9th June, 2016 the Commissioner of An Garda Síochána, hereinafter referred to as “the Commissioner”, sought, inter alia, the following orders:

(a) an order joining the Commissioner as a notice party to the proceedings; and

(b) an order directing that the proceedings be heard otherwise than in public.

2.3 The Commissioner appealed to the Court of Appeal from the judgment and order of the High Court made on 15th June, 2016 seeking to set aside the said judgment and order and in lieu thereof the granting of the reliefs sought by the Commissioner on the motion in the High Court. The Court of Appeal delivered judgment on the expedited appeal on 21st October, 2016 and made the order appealed against on 21st October, 2016. The judgment of the Court of Appeal also related to a similar appeal in the Rogers Proceedings. This Court is issuing a separate determination in relation to an application for leave from the judgment of the Court of Appeal in relation to the Rogers Proceedings.

3. The order appealed against

3.1 In the order dated 21st October, 2016 it was ordered that the appeal be allowed, that the order of the High Court dated 15th June, 2016 be set aside and that in lieu thereof the applications of the Commissioner to the High Court be granted. Accordingly, it was ordered:

(a) that the Commissioner be joined as a notice party in the proceedings in the High Court and be subject to such directions as the trial judge may give in relation to the participation of the notice party in the trial of the action; and

(b) that the proceedings be heard in the High Court otherwise than in public and that members of the public and members of the media be excluded from any hearing of said proceedings with judgment in the proceedings to be handed down in open court.

4.1 The Defendants’ Application for Leave to appeal together with the Respondent's Notice of the Plaintiff and the Respondent's Notice of the Commissioner are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of the determination, it is sufficient to summarise the basis on which the Defendants suggest that the constitutional threshold for leave has been met and the response of the Plaintiff and the Respondents.

4.2 The Defendants seek, as appellants on the appeal, to appeal from the entire decision of the Court of Appeal. They submit that the decision of the Court of Appeal involves a matter of general public importance. In support of that submission, they contend that the decision of the Court of Appeal concerns a fundamental principle of constitutional justice and concerns the interpretation of Article 34.1 of the Constitution and the question of when justice may be administered otherwise than in public. They contend that the decision of the Court of Appeal involved an interpretation of a decision of this Court, namely, the judgment in Irish Times Limited v. Ireland [1998] 1 I.R. 359 and they contend that the decision of the Court of Appeal expanded the ratio decidendi of that decision of this Court in a manner that is not permissible and that is not consistent with either Article 34.1 or the case law interpreting Article 34.1. Further, they contend that the decision of the Court of Appeal involved a consideration of whether the principles expounded in the decision of this Court in Irish Times Limited v. Ireland can be engaged by a party who is not a party to the substantive proceedings, pointing out that the Commissioner is neither a plaintiff nor a defendant in the High Court proceedings. It is suggested that the Commissioner is attempting to engage the decision of this Court in Irish Times Limited v. Ireland in relation to non-trial rights and that this is an expansion of the jurisdiction considered by this Court in Irish Times Limited v. Ireland. In summary, the Defendants are asking this Court to either distinguish that decision or to depart from it.

4.3 The Plaintiff opposes the application for leave to appeal. However, it is made clear in the Plaintiff’s Respondent’s Notice on the application for leave that at the time it was filed the primary concern of the Plaintiff was to save the hearing date scheduled in the High Court for the plenary defamation action, namely, 3rd November, 2016. It is explained in the Respondent's Notice that initially the Plaintiff took a neutral stance, save for asserting the desire to proceed in a manner that does not unduly restrict his right to access the courts and the right to a fair trial, and that the verdict of the jury resulting from the defamation hearing be published fully without restriction. However, it is explained that during the Court of Appeal hearing the Plaintiff modified his position to support the Commissioner’s application for an in camera hearing and that he did so in circumstances where the Commissioner indicated that, if an in camera order was not made, the Plaintiff would be precluded, as a matter of law, from giving evidence by virtue of the provisions of the Official Secrets Act 1963 (the Act of 1963). The position of the Plaintiff is that, whilst not accepting the validity of that contention of the Commissioner, he recognises that the ability to give evidence would be facilitated if there was an in camera hearing. Reiterating that the hearing of the substantive proceedings should proceed on 3rd November, 2016, the Plaintiff states, without prejudice to that position, that he does not wish to oppose the joinder of the Commissioner as a notice party, or in whatever capacity the Court shall deem appropriate, provided he is fully indemnified in respect of legal costs arising from the joinder and limited strictly to the issue arising on the appeal and not for any other purpose.

4.4 The position of the Commissioner as set out in her Respondent's Notice is that this Court in previous decisions has already accepted the principle that there can be circumstances absent a specific statutory provision that court proceedings be heard otherwise than in public. It is submitted that this Court has already held that the constitutional requirement set out in Article 34.1 that justice be administered in public must be considered in the light of other constitutional requirements. Citing the decision of this Court in Irish Times Limited v. Ireland, it is submitted that it requires a consideration and balancing of whatever constitutional rights arise in a particular case. Further, it is submitted the decision of the Court of Appeal on the appeal in this case does not involve an expansion of the ratio decidendi in Irish Times Limited v. Ireland. Rather the Court of Appeal on the appeal before it applied a well established principle of constitutional law, namely, that the constitutional requirement that justice be administered in public must be considered in the light of other constitutional requirements. Those other constitutional rights and interests were identified in the judgment of the Court of Appeal as the right to life, State security, public safety and international co-operation to combat serious crime. The Commissioner also takes issue with the contention of the Defendants that the decision in Irish Times Limited v. Ireland and other relevant authorities confine the making of an order that proceedings be heard otherwise than in public to criminal proceedings where a fair trial issue arose. Having referred to the foregoing matters, essentially the position of the Commissioner is that the decision of the Court of Appeal does not involve a matter of general public importance.

5. Discussion

5.1 As is clear from a range of determinations made by this Court since the Thirty Third Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. The text of the Constitution now makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against meets one or other of the two constitutional criteria outlined earlier.

5.2 The constitutional criterion invoked by the Defendants is that the decision of the Court of Appeal involves a matter of general public importance. Accordingly the issue to be determined is whether that criterion has been met.

5.3 Two matters alluded to in the Respondent's Notice filed on behalf of the Plaintiff require to be elaborated on.

5.4 First, the context in which the application of the Act of 1963 may be relied on in relation to the hearing of the appeal, as is disclosed in the judgment of the Court of Appeal (at paras. 21 and 22), arises from letters written by the Chief State Solicitor on behalf of the Commissioner on 8th June, 2016 to the solicitors for the Plaintiff and the solicitors for the Defendants. It is stated in the judgment that the letters say that it appears to the Commissioner that the “Witness Security Programme will feature” in the Plaintiff’s defamation proceedings and draw attention to the provisions of the Act of 1963 and, in particular, s. 4(1) and s. 4(4). Further, it is pointed out in the letters that under the provisions of the Act of 1963 the authorisation of the Commissioner will be necessary before any information in relation to the Witness Security Programme “can be disclosed or deployed in the course of the defamation proceedings”.

5.5 The other matter is that in the Respondent's Notice filed on behalf of the Plaintiff it is strenuously argued that, if leave to appeal should be granted to the Defendants, this Court should not place a stay on the order of the Court of Appeal or effectively stay the hearing of the Plaintiff’s plenary proceedings as listed. Chronologically what occurred was that the Defendants’ application for leave was heard by this panel of the Court on 1st November, 2016. A decision was made to grant leave to appeal on two grounds which will be outlined later. In the letter from the Registrar of the Court dated 1st November, 2016, the parties were notified of that decision and were informed that a determination in writing would issue in due course. On 2nd November, 2011 the Court (Denham C.J., MacMenamin J. and Laffoy J.) heard an application on behalf of the Defendants for a stay on the hearing of the Plaintiff’s plenary proceedings before a judge and jury in the High Court pending the determination of this Court on the appeal in respect of which leave had been granted on 1st November, 2016. An order in the terms sought by the Defendants was made by the Court, having heard counsel for the Defendants, counsel for the Plaintiff and counsel for the Commissioner. That order is separate and distinct from this determination.

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

6. Conclusion

6.1 The Court therefore granted leave to the Defendants to appeal under Article 34.5.3° on the following two grounds:

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

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