Witness civil cases to be heard in private
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 that the in camera order was necessary to safguard the witness protection scheme, 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 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 a 1998 Supreme Court decision in an Irish Times case 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.
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 constitutional rights and interests”.
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 claims concerning the operation of the witness protection scheme and referred to earlier proceedings by a protected witness, whose claim that the State failed to live up to promises made to him was ultimately rejected by a High Court judge after a hearing in private.
The plaintiffs were both involved in dealing with that 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 that the same issues of public, national importance, protection of life, and interests of state security and public safety as featured in the other case arose.
