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Irish Times Ltd. v. Ireland  IEHC 30;  1 IR 359;  2 ILRM 541 (18th February, 1997)
No. 43 JR
No. 45 JR
No. 44 JR
No. 50 JR
IRISH TIMES LIMITED
PUBLICATIONS (CORK) LIMITED
NEWSPAPERS IRELAND LIMITED AND NEWS GROUP NEWSPAPERS LIMITED AND
AND THE ATTORNEY GENERAL AND
HONOUR JUDGE ANTHONY G MURPHY CIRCUIT COURT JUDGE OF THE CORK CIRCUIT CO CORK
of Mr. Justice Morris delivered on the 18th day of February, 1997.
matter comes before the Court pursuant to an Order made on the 10th February,
1997 whereby the several Applicants were given leave to apply for an Order of
Certiorari by way of Judicial Review in respect of an Order made in a
prosecution in Cork Circuit Court entitled Director of Public Prosecutions -v-
Howard Charles Miller, James Noel, Roman Smollen and Theresa Bernadette da
Silva on the 6th February, 1997 which said Order restricted the right of the
several Applicants to report the said proceedings. The Director of Public
Prosecutions and the Accused in the prosecution were subsequently added as
Notice Parties in these proceedings.
facts from which this Application arises are contained in the following
documents which are before the Court:-
facts set out in the statement grounding application for Judicial Review.
affidavit grounding the said Application and the exhibits therein referred to.
extempore judgment of Judge A. G. Murphy on Application being made to him on
the 6th February, 1997.
affidavit of the County Registrar sworn on the 11th February, 1997.
transcript of the submissions made to the learned Circuit Judge on the 10th
additional affidavits filed on behalf of the Applicants in support of the
letter dated the 12th February, 1997 from Mr. John Brosnan, State Solicitor for
these several documents the following facts emerge.
the 6th February, 1997 the several Accused appeared before the Cork Circuit
Court Indicted on two counts namely possession of cocaine for the sale or
supply and secondly the unlawful importation of cocaine into the State. These
offences were alleged to have been committed on the 29th September, 1996 in
Cork Harbour when a converted trawler, the Sea Mist, was arrested by Customs
Officers and members of the Gardai. On being arraigned one of the Accused then
before the Court namely Gordan Richards, the skipper of the Sea Mist, pleaded
guilty to the charge of possession of cocaine for sale or supply. He was put
back for sentence to the end of the trial of the other four Accused. They
pleaded not guilty on both counts in the indictment. At the commencement of
the trial the learned Circuit Judge on his own Motion made an Order restricting
the reporting of the proceedings. He subsequently clarified and confirmed this
Order on 6th February, 1997. This is the Order that is being challenged in
terms of the Order which were made by the learned Circuit Judge are therefore
to be found in the Order (undated) signed by the County Registrar which was
made on the 6th February, 1997 at approximately 5 o'clock. This Order provided:-
there should be no contemporaneous media reporting of the trial save for:-
fact that the trial is proceeding in open Court.
names and addresses of the Accused parties.
nature of the crimes alleged in the indictment.
the trial is taking place.
not referring to the fact that the Accused are in custody.
fact that the captain of the vessel has pleaded guilty to the charge."
issues that arises in this Application concerns 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.
34.1 of the Constitution provides:-
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."
first issue which the Court has to consider is whether the trial which has
proceeded with this ban on contemporaneous reporting is one held "in public" in
accordance with the Constitution.
learned trial Judge in the course of his judgement on the 6th February, 1997
made the following observations:-
the ban on publication of this case was not to hold the trial in camera. The
doors of the Court are open, the seats are available, the trial was held in
public. The media can inform the public of the day to day minutiae of the
trial and 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, that the trial will be aborted and they will
be back in custody for a considerable period..........the public of course 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. It is not a ban on the public. This is a
delay which cannot conceivable adversely affect the public interest and for the
reasons stated I think it is quite justified. There is a ban on the
publication of this case other than the names and addresses of the accused
people and a statement of the crime."
well it is easier if I state what the press may do. They may report that this
trial is proceeding, the name and address of the accused parties, the nature of
the crime as set out in the indictment and where it is happening but not refer
to the fact that the accused are in custody."
effect of the Order of the learned trial Judge was to impose a restriction on
contemporaneous reporting of the case by the media other than as set out in his
judgment the Order places no prohibition on full reporting after the case had
is submitted on behalf of the Respondents that notwithstanding the Circuit
Judges Order the trial was being "administered in public" in accordance with
Article 34.1 of the Constitution. This interpretation was not accepted by the
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". In
the course of his speech in
General -v- Leveller Magazine Limited
1979 1 AER 745, Lord Diplock makes the following observations:-
a general rule the English system of administrating justice does require that
it be done in public (Scott -v- Scot) 1913 AC 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."
agree with this statement of Law as being appropriate in this jurisdiction
also. In my view if one were to hold that proceedings in Court were "in
public" while such a ban on publication by the media was in place then the
reasoning which would support that conclusion would equally support the
conclusion that a trial held in circumstances in which no member of the public
was allowed to communicate to anyone outside of the Court what transpired in
Court, would be equally valid. I do not think that any reasonable person could
be satisfied that such a trial was being held in public.
authority for the proposition that freedom of publication by the media is an
integral part of the administration of justice in public is to be found in
-v- Horsham Justices
(1972) 2 AER 269.
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?
1989 IR page 126 at page 134 the Supreme Court was considering an Application
under Section 205
of the Companies Act, 1963
which provided that a member of a
company might apply to the High Court for relief where the powers of the
directors of the company are being exercised or its affairs been conducted in a
manner oppressive to him or any of the members. Subsection 7
of that Act
in the opinion of the Court, the hearing of proceedings under the Section would
involve the disclosure of information the publication of which would be
seriously prejudicial to the legitimate interest of the company, the Court may
order that the hearing of the proceedings or any part thereof shall be in
provisions of this section and the impact which Article 34.1 has upon it were
considered by the Supreme Court and in the course of delivering the majority
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 administrated 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 Court 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 case or that they should
have had any business in the Court. Justice is administered in public on
behalf of all the inhabitants of the State.
to the enactment of the Constitution the question of whether or not particular
matters should be heard in public was a matter of 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 the hearing 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
fundamental principle in the administration of justice was made part of the
fundamental law of the State by Article 34 of the Constitution in 1937.....
Courts (Supplement Provisions) Act, 1961 by Section 45, subsection 1 permits
the administration of justice otherwise than in public in applications of an
urgent nature for relief by way of Habeus Corpus, bail, prohibition or
injunction, matrimonial causes and matters of lunacy and minor matters and
proceedings involving the disclosure of a secret manufacturing process. The
Section went on to say that the cases so prescribed should be in addition to
any other cases prescribed by any Act of the Oireachtas. These specified
exceptions were in fact matters in respect of which the Judge had a discretion
prior to the enactment of the Constitution. This discretion would appear to
have survived Article 64 of the Constitution of Saorstat Eireann which required
the administration of justice 'in the public Courts.....' but did not provide
for exceptions to be permitted by Statute. The Constitution of 1937 removed
any judicial discussion to have proceedings heard other than in public save
where expressly conferred by Statute. Indeed many matters which come under the
heading of 'lunacy and other matters' probably do not constitute the
administration of justice but simply the administration of the estates and
affairs of the wards of Court.
is already well established in our constitutional juris prudence that a phrase
such as 'save in such special and limited cases as may be prescribed by law'
which appears in Article 34.1 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 this case it is unnecessary
for me to offer any view on the interpretation to be given to subsection 3 of
Section 45 of the Courts (Supplemental Provisions) Act, 1961. Subsection 2 of
Section 45 refers to 'any other cases prescribed in any Act of the Oireachtas'
which of course must necessarily mean any Act of the Oireachtas established by
the Constitution. There have been many such provisions including the one in
question in this case."
clear statement of the law must be considered, I believe, in the light of the
fact that Mr. Justice Walsh was not concerned with a case in which a conflict
of constitutional rights existed. In the present case such a conflict in my
view does exist and therefore the position must be considered in that context.
hierarchy of constitutional rights recognised as existing by the Supreme Court
in among other cases the
(Director of Public Prosecutions) -v- Shaw
1982 IR page 1 was dealt with by Mr. Justice Kenny in the following terms:-
is a hierarchy of constitutional rights and, when a conflict arises between
them, that which ranks higher must prevail..... The decision on the priority
of constitutional rights is to be made by the High Court and, on appeal, to
this Court. When a conflict of constitutional rights arises it must be
resolved by having regard to (a) the terms of the constitution and (b) the
ethical values which all Christians living in the State acknowledge and accept
and (c) the main tenets of our system of constitutional parliamentary
democracy.... I have no doubt that the decision made by Detective
Superintendent Reynolds with regards to M's right to life as ranking higher
than the appellant's right to personal liberty for three days was the correct
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 which provides:-
person shall be tried on any criminal charge save in due course of law."
he balanced that against the media right and the citizens right of freedom of
expression under Article 40.6.1(i) which provides:-
right of citizens to express freely their convictions and opinions...."
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
1994 2 IR 465).
the test indicated by Mr. Justice Kenny in
I am of the view that in making this judgment the learned trial Judge applied
the correct test.
has been submitted during the course of the hearing before this Court that
apart from the argument based on Article 34.1 of the Constitution that a trial
Judge has no power vested in him to make such an Order on the grounds that by
doing so he alters the nature of the trial over which he is presiding and apart
from any constitutional restraints to do so would be a purported exercise of a
power which he did not possess.
do not accept this submission. As a matter of common practice the media do not
report the evidence and submissions made to the Court while a jury has
withdrawn in criminal, and indeed civil matters, and moreover it is accepted
that reporting may be delayed where the accused standing trial is the first of
a series of cases so that juries in other cases in the series will not be
prejudiced by knowing the evidence in the first case. It is submitted by the
Applicants that the media withhold contemporaneous reporting in such cases only
in the spirit of co-operation with the Court or alternatively by reason of a
reluctance to face contempt proceedings if publications are made. I do not
accept that this practice developed otherwise than as a result of a
long-standing recognition of an Order prohibiting such publication made in the
interest of ensuring a fair trial for the Accused in accordance with law. In
dealing with this matter Lord Denning M.R. in
-v- Horsham Justices
1982 2 AER 269 at page 285 says:-
has long been settled that the Courts have power to make an Order postponing
publication (but not prohibiting it) if the postponement is necessary for the
furtherance of justice in proceedings which are pending or imminent. It was so
1821 4 B & ALD 216 which was approved by the House of Lords in
It concerned the Cato Steele conspiracy. Several men were charged in one
indictment with high treason. They were to be tried successively one after the
other. Before the trial of the first man, Lord Davitt, C.J., in open Court
prohibited publication of the proceedings of that or any other day until the
whole trial was brought to a conclusion. The editor of the Observer on the
next Sunday, in breach of the Order, published a fair and accurate account of
the first three days. He was held in contempt of Court and fined £500.
On a rule being obtained to set it aside, the Court of King's Bench held that
the Order of the Chief Justices was perfectly good because all the trials could
be regarded as one proceeding and it was only an Order prohibiting publication
until the end of the trial and not prohibiting it altogether.
addition at common law whenever the Judge sends the Jury out he expressly or
impliedly directs that there should be no publication of what was said in their
absence; such as when a question arises at a trial whether a confession is
admissible or not; or whether evidence of a similar fact can be given or not;
or whether a man has put his character in issue so as to let in his previous
convictions. In such case the Judge sends the Jury out and conducts a 'trial
within a trial' so as to decide the question. It is well understood by the
press that there must be no publication of what takes place at 'the trial
within the trial' if there should be a premature publication it would
constitute a contempt of Court."
am satisfied that once a trial Judge recognises the existence of a superior
constitutional right as found by the Superior Courts then there is vested in
him the power to take such measures as are necessary to ensure that the trial
over which he is presiding is conducted in a fair manner and in accordance with
the Constitution and to protect that constitutional right.
remains now to consider the necessity which may have existed in the present
case for the making of an Order of the depth and scope as was made in this
case. It is submitted that the Order made was far wider than the occasion
demanded and that if any restrictions on reporting were required then the
situation would have been met by imposing less onerous restrictions.
case before the learned trial Judge involved the charge of possession for sale
and importation into the State of cocaine to the value of £47,000.00. It
was the largest seizure of cocaine in Ireland and possibly in Europe to date.
It was the first prosecution for alleged importation of the drug into the
country under the 1996 Act. The case had attracted significant media interest.
The learned trial Judge was aware of a case which was heard before him in
Michaelmas 1996 (
which, by reason of inaccurate radio reporting by a local radio station had to
be aborted during the hearing and the jury discharged. That was also a drug
prosecution. The learned trial Judge was aware of the interest of the media
and was aware that the accused had been in custody awaiting trial for upwards
of five months and that they were foreigners. He expressed the view that
"having regard to what happened and having regard to what was happening I could
see it was going to happen again and this trial will be aborted and they will
be back in custody for a considerable period". He expressed the view that he
had reliable information that "it started on a sinister footing on Tuesday
last". He was apparently referring at that stage to the fact that in a radio
report put out on local radio on that date it was stated that a jury was being
sworn for the case. That was inaccurate. No jury panel had been summoned for
that date. He stated that it was also reported that some of the jury panel
having heard this dropped what they were doing and ran to the Courthouse. He
stated that this was an inaccurate report. The learned trial Judge noted a
second matter. He noted that the application to discharge his original Order
commenced at 4.20 p.m. but that at 2.30 p.m. on that afternoon the Evening Echo
reported that it was "in Court today fighting an Order banning the newspaper
from reporting the case and that the Irish Times also made a report on the
am of the view that the learned trial Judge was entitled on that evidence to
come to the conclusion that a total ban on contemporaneous reporting was
necessary to protect the accused from risk. 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.
the use of hindsight if one were to test the necessity for an Order prohibiting
publication, one only has to look at the fact that in a leading article of the
Cork Examiner on Friday the 7th February a misreporting occurred which gives
rise to an application to the Judge on the 10th February, 1997 and again in an
article published in the Irish Times on the 7th February and on the 8th
February a further instance of incorrect reporting occurred which gave rise to
the necessity for a correction in this publication on the morning of Thursday
the 13th February. It seems to me that the learned trial Judge must have had
ample justification for his apprehension.
has been addressed to me as to the degree of risk which must be present before
a Judge should make an Order prohibiting or restricting publication.
-v- Director of Public Prosecutions
1994 2 IR p. 476 the Supreme Court were considering the principles of law
applicable when an issue as to the Accused's ability to obtain a fair trial is
being challenged in view of the exposure of his case to the public. At page
507 Chief Justice Finlay says:-
apart from what appears to be the submission of both sides in this case that we
should follow our own judgment in
-v- Director of Public Prosecutions
1994 2 IR 465, I see no reason on reconsidering the judgment and statements of
principle which are unanimous in that case to depart from them. Furthermore in
so far as the question of balance between the public right and interest to see
the proper trial and conviction of persons guilty of criminal offences and the
right of an individual to a fair trial under our constitutional provisions, I
am satisfied that no mere statement about balance would be correct. I would
prefer to follow the statement contained in the judgment of Denham J. in
-v- Director of Public Prosecutions
where at page 474 of the judgement she states as follows:-
applicant's right to a fair trail is one of the most fundamental constitutional
rights afforded to a person. On a hierarchy of constitutional rights it is 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 the alleged trial prosecuted.'
regard to the general principle of law I would only add to the principles which
I have already outlined the obvious fact to be implied from the decision of the
-v- Director of Public Prosecutions
that where one speaks of an onus of establishing 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
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:
there is a "real risk of an unfair trial" if contemporaneous reporting is
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.
these tests to the present case I am satisfied that the learned trial Judge was
justified in concluding that a real risk existed.
it has been submitted to me that in his approach to this matter the learned
Circuit Judge should have had regard to the wishes of the Accused and the fact
that none of the Accused is in favour of the retention of the Order
prohibiting publication and that certainly one and perhaps more of them support
the Application in seeking to have the reporting ban lifted. It has been
submitted to me that in these circumstances it was improper for the learned
Circuit Judge to impose or retain the ban. On the other hand Counsel on behalf
of the D.P.P. urges on the Court that this is not the correct test to apply and
that the correct test is the trial Judge's obligation to ensure the fairness of
the trial irrespective of the wishes of the Prosecution or the Accused.
this submission I am in entire agreement. It would, in my view, be quite wrong
for the trial Judge to conduct the trial in accordance with the wishes of
either party or indeed both if in fact the result was to be a trial otherwise
than in accordance with the Constitution.
I am of the view that the learned trial Judge was empowered to make the Order
that he did, that in so doing he applied the correct criteria and 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. In these circumstances I
refuse the relief sought.
© 1997 Irish High Court
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