Defamation actions linked to witness protection programme to be heard in private

The Garda Commissioner has secured a "unique" order for a hearing behind closed doors of civil actions by two people alleging defamation in Sunday World articles related to the State's Witness Protection Programme.

The actions will proceed later this year before a High Court judge and jury with the public and media excluded. Only the verdict can be published.

The commissioner argued the in camera order was necessary to safguard the programme, guard against a possible risk to life to those engaged with it, and for public safety and security interests.

The plaintiffs supported a private hearing but the Sunday World opposed it, arguing only criminal trials might be heard in private.

The President of the Court of Appeal, Mr Justice Sean Ryan, giving the three judge court's judgment, ruled the "exceptional" and "unique" order was necessary because constitutional rights and interests vital to the State are at stake, including the rights to life, State security, public safety and international co-operation "to combat crime of the most serious kind".

The order was also necessary given the commissioner’s functions under the Official Secrets Act and to protect the plaintiffs rights to a fair trial, he held.

A key issue concerned the interpretation of the 1998 Supreme Court decision in Irish Times Ltd & Ors v Ireland & Ors, which permitted a criminal trial to be heard in private.

Mr Justice Ryan ruled the exceptional jursidiction identified in that case to direct an in camera trial was not restricted to criminal proceedings. The courts have jurisdiction to also direct a private hearing in civil cases but the circumstances “must be extreme and rare indeed and the evidence cogent”, he said.

In the “extraordinary” circumstances here, the commissioner had surmounted the “very high threshold” for a private hearing and established “an existential threat generally” and in particular to a “practically unique catalogue of public and individual Constuitutional rights and interests”.

‘Indisputably important’

That was sufficient to outweigh the “indisputably important” requirements of Article 34.1 of the Constitution that justice “shall” be administered in public except in “special and limited cases as may be prescribed by law”, he ruled.

Article 34.1 can be overborne in cases where vital national and/or personal righst and interests can only be protected by in camera hearings or other ancillary orders, he said. This case was such an instance, “being unique and of the highest degree of national and individual importance”.

The test for such an order requires cogent evidence of an existential threat to a high constitutional right or interest, he said. It must also be shown that endangered interest can only be protected by a secrecy order and the threat is such a secrecy order is reasonable and proportionate. That test was satisfied in this case, he found.

The articles at the centre of the case, published in 2013, made various claims concerning operation of the programme and referred to earlier proceedings by a protected witness whose claim the State failed to live up to promises made to him was ultimately rejected by a High Court judge after a hearing in private. There was no jury in that case.

The plaintiffs were both involved in dealing with the person as a protected witness. The Sunday World denies their claims of defamation.

While not a party to their actions, the commissioner sought to be joined to them, arguing the same issues of public, national importance, protection of life and interests of State security and public safety as featured in the previous case arose.

The High Court had refused to order a private hearing and instead made orders allowing the Commissioner apply during the case to prevent publication of any particular evidence that might harm the integrity of the programme and also imposed a 24 hour delay on media reporting after which there was freedom to publish.

Mr Justice Ryan said the sides agreed that compromise solution was “unworkable in practice”.