The Supreme Court dismissed a newspaper group’s appeal over whether defamation proceedings concerning Ireland’s Witness Security Programme could be heard in public. It upheld the Court of Appeal’s order permitting the trial to be heard otherwise than in public, but said any departure from open justice must be limited to what is necessary. The trial judge must keep the arrangements under review.
The proceedings were brought by Patrick Benedict Gilchrist and Isabel Rogers against Sunday Newspapers Limited, Colm MacGinty and Nicola Tallant. The Commissioner of An Garda Síochána was joined as a notice party. The plaintiffs allege that newspaper articles identifying them and discussing the programme contained serious defamatory claims. The judgment said the truth of those allegations would be a matter for the trial; the Supreme Court did not decide them.
The Commissioner sought an in-camera trial, relying on evidence that public disclosure could expose witness protection officers, participants and their families to danger, and compromise the programme’s operation. The newspaper did not challenge or seek to cross-examine the officer whose affidavit was relied upon. The Commissioner also raised the possibility that evidence might be withheld on public interest privilege grounds or could risk prosecution under the Official Secrets Act. The plaintiffs supported a private hearing as a practical way to avoid delay and allow evidence to be given without those constraints.
The High Court had imposed limited restrictions on access and delayed reporting, but declined to order a fully private trial. The Court of Appeal allowed the Commissioner’s appeal and directed that the trial proceed in camera. The newspaper then appealed to the Supreme Court.
In a judgment delivered by O’Donnell J. on 23 March 2017, the Supreme Court held that open justice is a fundamental constitutional principle, but that courts may make exceptional departures under their power to regulate proceedings. The court must be strictly satisfied that the interests at stake and circumstances justify each restriction. The Supreme Court identified the public interest in the security and confidentiality of a functioning witness protection programme, including the safety of people involved, as central to this case.
The Court rejected the binary choice between a fully public and a wholly private trial as the only possible options. It said the trial judge should consider narrower measures, such as anonymising witnesses, restricting identification or photography, holding only parts of the hearing in private, or releasing redacted transcripts. The Supreme Court did not itself settle the final arrangements for the trial.
The Court dismissed the newspaper’s appeal and affirmed the order permitting the trial to be heard otherwise than in public. It gave the parties and other media organisations liberty to apply to the trial judge to limit or vary that order, generally or for particular issues. The judgment said the appeal was heard in public and was not redacted.