The Supreme Court has dismissed an appeal by Melton Enterprises Limited, leaving in place the High Court’s refusal to declare section 9 of the Censorship of Publications Act 1946 unconstitutional.
The company, which owned two newspapers sold in Ireland, challenged the Board’s authority to consider a prohibition order concerning the publication identified in the Board’s notice as “Weekly Sport”. The notice said complaints had been made that recent issues were frequently indecent or obscene and devoted an unduly large proportion of space to material relating to crime. Those were grounds under consideration by the Board; the Supreme Court judgment does not say that the Board ultimately made a prohibition order.
The company had also sought disclosure of the complainants’ identities. The Board declined, saying it had a policy of protecting complainants and that neither had agreed to be identified. The company’s judicial review application sought orders and declarations concerning that refusal, as well as a declaration that section 9 unlawfully assigned judicial functions to a body that was not a constitutional court.
The High Court refused all the relief sought. The Supreme Court appeal addressed the refusal to declare the Act’s provisions invalid. It did not determine the separate challenge to the Board’s refusal to disclose the complainants’ identities.
The company argued that the Board’s functions were judicial and were not “limited” within Article 37 of the Constitution. It also argued that the matter was criminal because indecent publication could constitute an offence. The respondents submitted that the Board’s role was limited and did not determine anyone’s criminal liability.
The Supreme Court accepted, for the purpose of its analysis, that the Board’s functions were judicial in nature. It held that they did not concern “criminal matters” under Article 37: the Board’s decision on whether to prohibit a periodical would not decide whether a person or company had committed a crime or impose criminal punishment. Any prosecution relating to publication would have to proceed separately through the criminal courts.
The court also found the powers limited. A prohibition would prevent sale and distribution for a defined period, and its effects, though potentially serious for a publisher’s reputation, were not “profound and far reaching” in the constitutional sense. The court therefore dismissed the appeal from the High Court order refusing the requested declaration.