Supreme Court: Private hearing of Sunday Newspapers defamation case justified by the functioning of the Witness Protection Programme

About this case:

• Judgment:
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Rejecting the newspaper’s arguments, but adding that a compromise could be arrived at, Justice Donal O’Donnell found that the public interest in the functioning of the Witness Protection Programme justified the decision to hear the trial in camera where there were no alternatives canvassed other than a fully public hearing.

Background

Delivering the judgment of the five-judge Supreme Court, Justice Donal O’Donnell described the circumstances of the proceedings as “extreme, and quite possibly unique”.

Mr David Mooney, entered the Witness Protection Programme in 2003 upon assisting the Garda Siochana with the prosecution of members of the IRA who had sought money from Mr Mooney as a business owner.

The programme is operated on an administrative basis by An Garda Síochána, its existence is recognised by s.40 of the Criminal Justice Act 1999, which makes it a criminal offence to seek or take steps to seek information about the new identity or the whereabouts of a relocated witness, or to disclose such information.

The Court heard that at some stage Mr. Mooney became unhappy with the programme and initiated proceedings against the Commissioner of An Garda Síochána contending that he had an agreement for a different form of relocation and protection than was being provided. In Mooney v. The Commissioner of An Garda Síochána & ors 3 I.R. 189, the High Court “held that the hearing of Mr. Mooney’s proceedings against the Commissioner should proceed in camera”, accepting the contention that “it would not be possible to mount a proper defence to the proceedings otherwise, since it would involve the disclosure of the identity of persons who could then become a target for subversive elements”.

Prior to the High Court hearing in Mr. Mooney’s case, he had been in contact with a journalist from the Sunday World Newspaper, the appellants herein, and in June 2003, the newspaper published a two page article under a heading “Witless Protection Programme” - referring to Mr Mooney’s proceedings as a “landmark case set to expose the ‘shambles’ at the heart of a secret Garda unit”.

Central to the article were allegations made about a former detective who had been running the programme and in particular had been dealing with Mr. Mooney and a psychotherapist who had provided assistance to the programme – i.e. Patrick Benedict Gilchrist and Isabel Rogers who were the plaintiff’s in the present proceedings.

It was suggested that they had misrepresented the qualification and status of Ms Rogers and enjoyed luxurious travel and accommodation and had engaged in an affair while Mr Gilchrist was married. The article not only identified them by name, but also published large photographs of them – the issue for the Supreme Court to consider in this case, was whether the High Court was correct in ruling that the proceedings should be held in camera due to the case’s overlap with the witness protection programme.

Public administration of Justice

Counsel for the appellants; Sunday Newspapers Limited, Colm MacGinty, and Nicola Tallant, sought to rely on Article 34.1 of the Constitution, which 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.”

As such, they emphasised the observations in Irish Times v. Ireland 1 I.R. 359 at p.409:

“Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly or 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.”

However, Justice O’Donnell described this as “a sentiment of great antiquity”, echoing Scott v. Scott A.C. 417, in which the following passages from Jeremy Bentham were cited:

“In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.”

And

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

Justice O’Donnell emphasised that “any departure from the rule of hearing in public is an exception which must be strictly justified”

Since the only options canvassed in the Supreme Court were a hearing fully in public or one completely in camera – Justice O’Donnell offered alternatives which could strike a balance of the issues, and added that “whether any lesser steps would meet any legitimate interests involved could be the subject of further submissions to the trial judge”.

Considering that the net issue presented for determination by the Supreme Court could “be reduced to the question whether this trial must be conducted fully in public, or whether any departure from that principle may be permitted”, Justice O’Donnell was satisfied that “the public interest in the functioning of the Witness Protection Programme and the consequent protection of the lives of participants in it and officers and staff mean that the court’s power to control its own powers must extend to departing from a hearing in public in this case at least to some extent”.

Justice O’Donnell explained that this was based on an analysis of Article 34.1, but added that “the same result could, and in most if not all cases would, be arrived at by application of the language of In re R. Ltd. I.R. 126 or indeed Irish Times v. Ireland 1 I.R. 359”

Therefore, on the “single issue of principle”, the Supreme Court dismissed the newspaper’s appeal “but on substantially different and narrower grounds” than the Court of Appeal – leaving it open to the parties to address the trial judge on aforementioned alternatives.