Sunday Newspapers Ltd & ors v Gilchrist and Rogers

Factual and Procedural Background

Two former members of a witness protection programme (the Plaintiffs) sued a national newspaper and two of its journalists (the Defendants) for alleged defamation arising from articles that identified the Plaintiffs and criticised the operation of the programme.
Because the litigation was likely to reveal operational details of the programme, the Commissioner of An Garda Síochána (the Notice Party) applied to be joined and sought an order that the entire defamation trial be heard in camera.
The High Court judge managing the case made only limited reporting restrictions. Both the Notice Party and the Defendants appealed—each contending that the High Court compromise was unworkable.
The Court of Appeal allowed the Notice Party’s appeal and ordered that the trial proceed in camera. The Defendants obtained leave to appeal to the Supreme Court, which delivered the present judgment dismissing the appeal.

Legal Issues Presented

1. Whether Article 34.1 of the Constitution, which mandates that justice be administered in public, allows any departure from a public hearing in civil proceedings absent express post-1937 legislation.
2. If departures are permissible, whether the circumstances surrounding the witness protection programme and the asserted risks to life and national security justify conducting the forthcoming defamation trial wholly (or partly) in camera.

Arguments of the Parties

Appellant (Defendants) Arguments

• Article 34.1 is a “fixed point” in the constitutional architecture; it can yield only where justice cannot be administered at all without limiting publicity.
• In re R. Ltd establishes that any exception requires post-1937 legislation; common-law powers are insufficient.
• A balancing exercise between Article 34.1 and other constitutional rights would erode open justice and allow litigants or the State to manipulate proceedings into secrecy.

Respondent (Notice Party) Arguments

• The Court retains an inherent power, recognised in Irish Times v. Ireland, to depart from open justice where other constitutional values of great weight—here, the right to life and national security—are imperilled.
• Public disclosure of programme details would jeopardise the lives of officers, protected witnesses and their families, and undermine future prosecutions.
• The Official Secrets Act and public-interest privilege may prevent key evidence being given unless proceedings are in camera, making a fair trial impossible otherwise.

Plaintiffs’ Position

• Supported the Notice Party pragmatically: an in camera hearing would avoid possible prosecution of witnesses under the Official Secrets Act and ensure that all relevant evidence is available.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge O'Donnell reaffirmed that open justice is a “fundamental constitutional value,” yet Article 34.1 expressly envisages exceptions. The Court traced the development from the stringent rule in In re R. Ltd to the more flexible approach in Irish Times, concluding that an absolute bar on departures is untenable.

Key analytical steps:

• The Court possesses an inherent common-law power—independent of post-1937 legislation—to regulate its own proceedings when compelling interests are at stake.
• Protection of the witness-security programme serves a vital public interest and implicates the constitutional right to life; disclosure risks are “not a matter of speculation.”
• Exceptions must be “strictly construed”: the court must adopt only the minimum measures necessary and should consider incremental alternatives (anonymisation, redacted transcripts, partial closures).
• Even under the narrow In re R. Ltd test, a public hearing here would likely prevent essential evidence being given (because of Official Secrets Act exposure and privilege claims), thereby impeding the administration of justice.
• Accordingly, some departure from full publicity is constitutionally permissible; however, the extent and form of that departure remain for the trial judge to calibrate as the case progresses.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the Court of Appeal order permitting the defamation trial to proceed otherwise than in public, while allowing the trial judge to revisit the scope of any restrictions and to entertain applications from other media organisations.

Implications: The decision clarifies that Irish courts retain an inherent power, even without statutory authority, to limit public access where compelling interests—such as national security or the protection of life—demand it. It sets out a structured, incremental approach requiring courts to adopt the least-restrictive measures compatible with those interests, thereby refining Irish open-justice jurisprudence without displacing the principle’s primacy.