Supreme Court dismisses appeal; Board not obliged to disclose complainant identities under censorship procedures.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

130/03

BETWEEN

MELTON ENTERPRISES LIMITED

APPLICANTS / APPELLANTS

AND

THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT delivered the 4th November 2003 by Keane C.J.

The factual background to these proceedings has been set out in the judgment of the court on the constitutional issue.

The appellants submitted that, if, contrary to their submissions on the constitutional issue, the provisions of the Act were

constitutionally valid, the Board were obliged to disclose to the appellants the identity of the complainants. Mr. Gordon, on behalf of

the appellants, submitted that, unless their identity was disclosed, it would not be possible to determine whether the complainants

were cranks, business competitors or persons acting for some other ulterior motive and not making complaints in good faith.

Mr. Gordon submitted that natural justice and constitutional justice required that a person against whom a complaint of a serious

nature had been made should know who his accuser was. The requirements of fair procedures would not be met if one person was

entitled to make a case against another without his identity being disclosed, thus enabling the accused person to test the bona fides

of the complainant. He cited in support the decisions of this court in Re. Haughey [1971] I.R. 217, Kiely –v- The Minister for Social

Welfare (No. 2) [1977] I.R. 276 and Gallagher –v- The Revenue Commissioners [1995] 1 I.L.R.M. 241 and of the High Court in Ryan –

v- V.I.P. Cooperative Society Limited (Lardner J.; unreported; judgment delivered 10th January, 1989) and Flanagan –v- U.C.D.

[1988] I.R. 724.

Mr. Gordon further submitted that the Board were not entitled to adopt an inflexible policy of declining in every case to disclose the

identity of complainants. It is clear, he said, that they could not legitimately fetter their discretion in that way, citing in support

Carrigaline Community Television Broadcasting Company Ltd –v- Minister for Transport, Energy and Communications [1997] 1

I.L.R.M 241.

On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board’s procedures fully complied with the requirements of

natural justice and fair procedures. The appellants had been furnished with all the material contained in the complaints, other than

the identity of the complainants, and the Board had invited the appellants to make whatever representations they considered

appropriate before the Board reached any determination of the matter. The audi alteram partem rule had thus been fully complied

with: the complainants were not in the position of accusers and the appellants did not enjoy the right to cross-examine them, the

circumstances being entirely different from those considered by this court in Re. Haughey.

Mr. Cross further submitted that it was for members of the Board, and them alone, to form an opinion as the whether the publication

complained of was indecent or obscene or had devoted an unduly large proportion of space in the publication to matter relating to

crime. The identity of the complainants was, accordingly, wholly irrelevant: the Board were required to arrive at their determination

without having any regard to the identity of the complainants.

Mr. Cross further submitted that the Board’s policy of non-disclosure of the identity of the complainant did not amount to an unlawful

abandonment of its discretion. It was accepted that it had such a discretion, but its stated policy was to ensure that members of the

public came forward to make complaints and, as a result, not to disclose their identity. At the same time the policy was not operated

so rigidly as to apply in all circumstances, since the Board would seek the consent of the complainant to his or her identity being

disclosed as had happened in this case.

Article 5 of the Censorship of Publications Regulations, 1980 (S.I. No. 292 of 1980) made by the Minister for Justice in exercise of the

powers conferred on him by s. 20 of the 1946 Act, provides that

“A complaint made under s. 9 of the Act in respect of a periodical publication shall

(a) be in writing,

(b) state the reason why the complainant considers that the sale and distribution in the State of the issues of the publication

which are the subject of the complaint and of future issues of the publication should be prohibited,

(c) indicate the passages (if any) in the issues of the publication accompanying the complaint upon which the complainant

places particular reliance in support of his complaint, and

(d) be accompanied by a copy of each of not less than three recent issues of the periodical publication.”

It was accepted in the course of the arguments in this court that the regulations could not have envisaged the making of a complaint

by a person or body who insisted on remaining anonymous. The sole issue was as to whether the adoption by the Board of a policy of

not disclosing the identity of the complainant to the publishers was contrary to natural justice and constituted an unfair procedure.

It is beyond argument that a person accused of a criminal offence has a constitutional right to test by cross-examination the

evidence offered by or on behalf of his accuser: see the judgments of the High Court and this court in The State (Healy) –v- Donohue

[1976] I.R. 325 and Donnelly –v- Ireland [1998] 1 I.R. 321. It is also clear that where, as in Re. Haughey, in the case of a tribunal

other than a court, the conduct complained of, if it resulted in a conviction by a court of competent jurisdiction, would amount to a

criminal offence, the person who is the subject of the complaint is entitled to test by examination the evidence relied on in support of

the complaint. Similarly, in the case of a tribunal established pursuant to statute or to a contract whose findings determine the legal

rights of parties, the parties have the right to test the evidence on which the tribunal proposes to rely in reaching its determination

by examination or, at the least, where there is no oral hearing, to be furnished with the witness statements or other material

furnished to the tribunal by the opposing party.

Thus, in Kiely –v- The Minister for Social Welfare (No. 2), a person claiming to be entitled to a particular social welfare benefit was

held to have been deprived of natural justice where an oral hearing was held by the tribunal, but the medical evidence on behalf of

the relevant Minister was in written form only. Similarly, in Ryan –v- V.I.P. Cooperative Society Ltd, it was held that the taxi driver

who was the subject of complaints to the defendant’s society of which he was a member was entitled to be furnished with the names

and addresses of the persons who had made the complaints and details of the allegations which had been made. Again, in Gallagher –

v- The Revenue Commissioners & Ors, a customs and excise officer against whom complaints had been made that he had deliberately

undervalued vehicles and thereby caused a loss of revenue to the State was entitled to test the evidence furnished to the Revenue

Commissioners by cross-examination. A similar conclusion was reached in Flanagan –v- University College Dublin, where a charge of

plagiarism had been made against a student and a disciplinary committee held a meeting to consider the complaint. It was held that

she was entitled to receive in writing details of the precise charge being made, to hear evidence of the case at the meeting and to

challenge that evidence by cross-examination.

There is, however, one feature present in all those decisions which is conspicuously absent from the present case. In each instance,

the relevant tribunal was involved in the ascertainment of objective facts on the basis of which it would then arrive at its adjudication

or, in the case of Re. Haughey, submit its conclusions to the Oireachtas in the form of a report. In total contrast, the Board in this

case is not engaged in an inquiry which, if properly conducted, would result in impartial and objective findings of fact. It is concerned

with the wholly subjective process of determining whether, in the opinion of at least three of its members, the recently published

issues of “The Weekend Sport” have usually or frequently been indecent or obscene or have devoted an unduly large proportion of

space to the publication of matter relating to crime.

The history of obscenity laws in many countries affords eloquent testimony of just how subjective such determinations, whether made

by judges, juries or other bodies, can be. It would, however, be difficult to find a more graphic illustration than the operations of the

Board itself at an earlier stage of its history, when it prohibited the sale and distribution in Ireland of a vast range of books as being

indecent or obscene, many of which would now be generally acknowledged to be masterpieces of 20th century literature.

I am satisfied that those considerations are of critical importance when one comes to consider the precise role played by

complainants in the censorship of publications code. It is reasonable to assume that, when that code was introduced in Ireland for

the first time in 1929, the Oireachtas and the Executive were of the view that it would have been an impractical and time wasting

process to employ inspectors for the purpose of monitoring the vast range of books and periodicals on sale in the State. They relied

instead on a system of voluntary complaints in the expectation, which was not disappointed, that there would be a significant number

of persons or organisations willing to bring to the attention of the Board books and periodicals for examination by them. Given that the

decision in any particular case as to whether a publication was indecent or obscene was exclusively a matter for the subjective

determination of the individual members of the Board, the complaints mechanism was no more than a trigger to set the banning

procedures in motion. (It is also of interest to note that, in the case of books as contrasted with periodical publications, the Board

can initiate the examination of a publication even in the absence of a complaint.) Moreover, while under the 1929 Act the complaint

had to be made to the Minister for Justice in the first instance who then had a discretion to refer the complaint to the Board, that

requirement was dropped when the 1946 Act was enacted.

While Article 5(b) of the Regulations requires a complaint to state the reason why the complainant considers a prohibition order should

be made, there seems no reason to suppose that this requirement would not be met in a case such as the present by the complainant

simply stating that in his or her opinion the passages identified were indecent or obscene or that the extent of them indicated, again

in his or her opinion, that an unduly large proportion of the space in the periodical had been devoted to the publication of material

relating to crime. Given the subjective nature of the view which the members of the Board have to form, that would seem to be a

sufficient basis for invoking its jurisdiction.

That is not to say that, where, as in the present case, the complainants offered detailed reasons as to why, in their view, the

publication should be regarded as “indecent or obscene”, the furnishing of such reasons would in any way invalidate the complaint. It

seems clear, however, that members of the Board would be acting ultra vires the powers conferred on them if they were to adopt the

view of the complainants on any of the matters referred to in their complaints, unless, of course, it coincided with their own

independently formed view. Undoubtedly, the requirements of fairness and openness demand that the publishers should be furnished

with all the material in the complaints and the Board must at least consider whether they should be invited to make representations to

the Board in respect of the complaints. However, while an issue has arisen in these proceedings as to the obligation on the Board to

disclose the identities of the complainants to the publishers, no other issue arises as to the fairness and openness of the procedures

adopted by them.

As to the relevance of the identities of the complainants, I have already pointed out the sharp contrast between the statutory

procedures in this case and the procedures under scrutiny in the decisions on which the appellants rely. Whether the complainant is a

public figure whose particular status might lead to his or her view that a publication should be banned being treated with respect by

some members of the public, or is a crusading zealot whose views might only evoke support from those of a similar way of thinking, or

is a meddlesome crank or busybody or is even a business competitor of the publisher are not factors which the Board are entitled to

take into account in any way when reaching the purely subjective opinion they are required to form.

It is clear, for the reasons already given, that the procedures on which the Board embark, once a complaint is made (or even without

such a complaint in the case of a book), bear no resemblance to the adversarial procedures which, in the case of other tribunals, may

require the invocation of the fair procedures identified in cases such as Re. Haughey and Kiely –v- The Minister for Social Welfare

which necessarily include, in at least some instances, the disclosure of the identity of complainants and the testing of the substance

of their complaints by the traditional method of cross-examination. While the Board are obliged to afford fair procedures to the

appellants to the extent indicated by this court in Irish Family Planning Association –v- Ryan, and have done so, that obligation does

not, in my view, extend to disclosing the identities of the complainants, if, in the opinion of the Board, there are policy reasons for not

disclosing that identity and that policy cannot objectively be regarded as arbitrary, capricious or unreasonable.

I am satisfied that, the Oireachtas having decided that a system of complaints by the public should be an integral part of the

censorship of publications system and should be the only mechanism for initiating the censorship procedure in the case of periodical

publications, the Board are entitled to take the view that members of the public would be discouraged from exercising their statutory

right to complain if their identity was made public in every case. It inevitably follows that the Board, if satisfied that such a policy

should be adopted in order to achieve the objectives of the legislation, could not legitimately differentiate between different

complainants. It seems to me that, for those reasons, decisions such as Carrigaline Community Television Broadcasting Company Ltd

–v- Minister for Transport, Energy and Communications which deal with the extent to which bodies invested with statutory powers

may exercise them in accordance with a predetermined policy have no relevance to the present case.

I would dismiss the appeal and affirm the judgment and order of the High Court.