Justice shall be administered in public

The Four Courts, by Darragh Sherwin, via FlickrArticle 34.1 of the Constitution provides that

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Giving judgment in the Supreme Court yesterday in a very sad case, Hardiman J began by saying:

On the hearing of this appeal the Court was requested on both sides of the case to take such steps as were possible to prevent the publication of the applicant’s name or at of any detail which might identify him. This was requested on the basis that he was, undisputedly, a person under a disability.

The Court did not consider that it had, in these proceedings, any power to make an order in that regard. However the Court agreed to, and did, request any representatives of the media who might be present not to publish his name and said that it would not itself do so. The Court now repeats this request to any person who may wish to report this case either for the ordinary media or for the purposes of law reporting.

The title of the case online (MD v Clinical Director of St Brendan’s Hospital [2007] IESC 37 (27 July 2007)) certainly doesn’t identify the unsuccessful applicant; so, to that extent, Hardiman J’s entreaty was heeded. But, as Eddie McGarr has recently had occasion to observe, the main principle in Article 34.1 is that of public justice. If there is no express legal basis for ordering a case to be held in camera or for the identity of a party to be concealed, then as Hardiman J observed here, the Court has no power of its own motion to exclude the public or the press (Irish Times Ltd v Ireland [1998] 1 IR 359 (SC)), or to allow a party to a case to remain anonymous (Roe v Blood Transfusion Board [1996] 3 IR 67 (HC)).

Nevertheless, persons in the position of the applicant in this case plainly have privacy interests worth protecting. I hope that those reporting the case act responsibly in respecting his privacy, but I wonder whether the legislature might give some thought to amending the Mental Health Act, 2001 (also here) to include a power similar to that in section 45 of the Courts (Supplemental Provisions) Act, 1961 (also here).

This is not a call for the immediate introduction of the power. Rather, it is a call to consider the matter and in particular to consider the strength of the general principle of open justice in this context – after all, the leading cases take the view that those who seek to invoke the courts must do so subject to the fact that the public has an interest in ensuring that justice is not only done but also is seen to be done. Those who litigate must accept that the litigation will very likely be held in public. Justice may be blind, but the public are not, and they should not lightly have blindness thrust upon them. Nevertheless, there are certain things from which members of the public should – for reasons of prudence or sensitivity – avert their gaze, and the identity of those in MD’s situation may very well be one of them.

Update (27 July 2007): I learn from Darius Whelan that, pursuant to section 75 of the Mental Health Act, 2001, the Department of Health and Children published a review of the Act in May 2007. So far as I can see, the only recommendation relating to cases in the High Court under the Act is this:

49. It would be helpful for the Mental Health Commission to publish relevant judgments relating to the Act on its website and issue advice to service providers as required. (Section 73)

But there is still time for the issue raised here to be considered, as the report recommends that a more detailed review of the Act should be undertaken by the Department within 5 years of the full implementation of the Act, that is, before 1 November 2011.