The High Court has determined that a judicial review application will be heard in camera as the relatively few inquiries before the panel of respondents combined with the question over the admissibility of the particular evidence increased the risk of identification of the applicant and other parties.
Delivering judgment for the High Court, Mr Justice Conleth Bradley determined: “I do not consider that an order short of a hearing in camera, including an order directing anonymity — even one applied in the most extensive way to the identity of the parties, of witnesses, of institutions and of location — is sufficiently proportionate to guarantee the countervailing interests in the protection of the aforesaid constitutional rights which the applicant submits are engaged.”
Background
At a preliminary hearing on 1 February 2022, a panel comprised of the respondents decided that a disciplinary inquiry concerning the applicant would proceed as an oral hearing in public and that there would be full anonymity from publication of information identifying inter alia the applicant, witnesses, any person referred to in the inquiry and the institution involved.
An issue arose as to whether or not screenshots of information allegedly procured unlawfully from a mobile messaging application constituted information showing that the applicant had been in communication over a period with a third-party adult with whom the applicant stated they had one sexual encounter and was such as to establish the existence of an alleged relationship, or whether the information was fake.
A further hearing took place on 31 May 2022 concerning the admissibility of this information and a decision was made by the panel on 21 June 2022 deeming the material admissible. The applicant sought to challenge this decision by way of judicial review.
Leave to apply for judicial review was granted by Mr Justice Charles Meenan, who made an order directing that the publication or broadcast of any matter relating to the proceedings which might identify the Applicant would be prohibited and that the title of the proceedings would be anonymised.
Mr Justice Meenan also gave liberty to the applicant to apply for an order directing the proceedings to be heard in camera, which application came before Mr Justice Bradley.
The High Court
The court set out that its common law power to direct an in camera hearing was analysed by the Supreme Court in Gilchrist & Rogers v Sunday Newspapers Ltd [2017] IESC 18 [2017]; 2 I.R. 284, which emphasised that:
“Article 34.1 of the Constitution mandated a restrictive, exceptional and proportionate curial approach… to the exercise of the common law power of the court to direct a trial in camera where it was required… because the requirement that justice be administered in public pursuant to Article 34.1 was a fundamental constitutional value of great importance.”
Noting that the application before him sought to engage the court’s common law power to direct an in camerahearing in the regulatory context, Mr Justice Bradley considered the decisions of Medical Council v Anonymous[2019] IEHC 109 and The Medical Council v A Medical Practitioner [2020] IEHC 245.
Opining that the court was “obliged to adopt and apply a strict construction and sceptical perspective to the claim of exceptionality to the principle of trial in public which is raised in this application”, Mr Justice Bradley stated that the facts and circumstances of the case were “exceptional and pressing” in that applicant’s constitutional rights of privacy, good name and reputation and the right to earn a livelihood were involved, and that “an order short of a hearing in camera” would not be sufficiently proportionate to guarantee the applicant’s constitutional rights.
The court considered firstly that the applicant demonstrated a risk of injustice which could not be undone unless the hearing of the substantive judicial review application is conducted otherwise than in public, noting that the relatively few inquiries before the respondents combined with the question of admissibility of the particular evidence meant there was a risk of identification of the applicant and other parties.
The judge also highlighted that there was a consensus between the parties that the hearing should be held otherwise than in public, with the respondents adopting a neutral position as to whether the proceedings should be held in camera, and that the applicant continues to be in employment in a different location, is in good standing, and that the applicant’s current employers are not aware of the allegations.
The court also considered that the applicant was never the subject of an application to have their registration suspended in the public interest, and that identifying the parties, institutions or locations involved could have negative effects for those parties and institutions.
Finally, the court considered that in Medical Council v Anonymous, the High Court in ordering the hearing of the initial application for the proceedings to be held in camera was to be held in camera, found that if it did not accede to the application, judgment would be delivered in open court. Mr Justice Bradley found that a direction of anonymisation in relation to the parties might be “insufficient to prevent the publication of the central issue concerning the details of what is alleged in general terms in the context of the collation of unlawful evidence”.
The court continued: “This could mean that a panel of the respondents hearing the matter could potentially become aware of the detail of this alleged issue, irrespective of any decision of the court as to its admissibility and accordingly, any decision of the court in respect of the exclusion of this evidence may be potentially undermined, if not indeed, rendered moot.”
Conclusion
Accordingly, the High Court directed that the hearing of the substantive application for judicial review would proceed in camera.
C. v. P. [2024] IEHC 54
