The Court of Appeal has ordered that two defamation actions against the Sunday World be heard otherwise than in public, finding that the exceptional measure was justified by risks to the State’s Witness Security Programme and to people connected with it.
In a judgment delivered on 21 October 2016, the court also allowed the Garda Commissioner to join the actions as a notice party. It left the precise manner in which the Commissioner’s counsel may participate to the trial judge.
The actions were brought by Isabel Rogers and Patrick Benedict Gilchrist over Sunday World articles published on 9 and 16 June 2013. The articles concerned earlier proceedings brought by David Mooney, a protected witness, and the roles allegedly played by Rogers and Gilchrist in events related to the Witness Security Programme. The Court of Appeal did not decide the meaning of the articles or the merits of the defamation claims.
The Commissioner sought to join the cases and have them heard in private, arguing that evidence could expose programme personnel, methods and links with other countries. An affidavit from Detective Chief Superintendent Michael O’Sullivan described possible risks to protected witnesses, their families, programme staff, public safety and international cooperation. The judgment says that evidence was not disputed.
The High Court had allowed the press to attend but imposed an automatic 24-hour delay on reporting evidence, while allowing the Commissioner to apply to prevent publication of evidence that might harm the programme. Both the Commissioner and the newspaper appealed, agreeing that the arrangement was unworkable.
The newspaper argued that the exceptional power to depart from public hearings applied only to criminal trials involving a risk to fair trial rights, and that the Commissioner’s concerns did not justify restrictions in these civil cases. The plaintiffs prioritised having their cases proceed as scheduled and accepted that private hearings were the most practical way to avoid a dispute over use of evidence under the Official Secrets Act.
The Court of Appeal held that a civil case could be heard in private in rare and extreme circumstances where a high constitutional interest faced a serious threat supported by cogent evidence, and the threat could not be addressed through less restrictive measures. It found those conditions met here, citing risks to life, State security, public safety and international cooperation. It also accepted, as an additional ground, the plaintiffs’ entitlement to a fair trial of their claims.
The order concerns how the actions will be heard. The judgment does not determine the defamation claims, and it leaves the Commissioner’s counsel’s role at trial for the trial judge to settle.