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1. This matter comes before the Court pursuant to an Order made on the 10th February, 1997 whereby the several Applicants were given leave to apply for an Order of Certiorari by way of Judicial Review in respect of an Order made in a prosecution in Cork Circuit Court entitled Director of Public Prosecutions -v- Howard Charles Miller, James Noel, Roman Smollen and Theresa Bernadette da Silva on the 6th February, 1997 which said Order restricted the right of the several Applicants to report the said proceedings. The Director of Public Prosecutions and the Accused in the prosecution were subsequently added as Notice Parties in these proceedings.

2. The facts from which this Application arises are contained in the following documents which are before the Court:-

3. From these several documents the following facts emerge.

4. On the 6th February, 1997 the several Accused appeared before the Cork Circuit Court Indicted on two counts namely possession of cocaine for the sale or supply and secondly the unlawful importation of cocaine into the State. These offences were alleged to have been committed on the 29th September, 1996 in Cork Harbour when a converted trawler, the Sea Mist, was arrested by Customs Officers and members of the Gardai. On being arraigned one of the Accused then before the Court namely Gordan Richards, the skipper of the Sea Mist, pleaded guilty to the charge of possession of cocaine for sale or supply. He was put back for sentence to the end of the trial of the other four Accused. They pleaded not guilty on both counts in the indictment. At the commencement of the trial the learned Circuit Judge on his own Motion made an Order restricting the reporting of the proceedings. He subsequently clarified and confirmed this Order on 6th February, 1997. This is the Order that is being challenged in these proceedings.

5. The terms of the Order which were made by the learned Circuit Judge are therefore to be found in the Order (undated) signed by the County Registrar which was made on the 6th February, 1997 at approximately 5 o'clock. This Order provided:-

6. The issues that arises in this Application concerns firstly the powers, if any, which a trial Judge has to either prohibit or limit the reporting of a criminal trial which is proceeding before him and secondly, if he does have such powers, the manner in which they should be exercised.

7. Article 34.1 of the Constitution provides:-

8. The first issue which the Court has to consider is whether the trial which has proceeded with this ban on contemporaneous reporting is one held "in public" in accordance with the Constitution.

9. The learned trial Judge in the course of his judgement on the 6th February, 1997 made the following observations:-

10. The effect of the Order of the learned trial Judge was to impose a restriction on contemporaneous reporting of the case by the media other than as set out in his judgment the Order places no prohibition on full reporting after the case had been concluded.

11. It is submitted on behalf of the Respondents that notwithstanding the Circuit Judges Order the trial was being "administered in public" in accordance with Article 34.1 of the Constitution. This interpretation was not accepted by the Applicants.

12. I do not accept that a trial being held subject to the limitations on publication imposed by the learned trial Judge in this case is being held "in public". In the course of his speech in Attorney General -v- Leveller Magazine Limited 1979 1 AER 745, Lord Diplock makes the following observations:-

13. I agree with this statement of Law as being appropriate in this jurisdiction also. In my view if one were to hold that proceedings in Court were "in public" while such a ban on publication by the media was in place then the reasoning which would support that conclusion would equally support the conclusion that a trial held in circumstances in which no member of the public was allowed to communicate to anyone outside of the Court what transpired in Court, would be equally valid. I do not think that any reasonable person could be satisfied that such a trial was being held in public.

14. Further authority for the proposition that freedom of publication by the media is an integral part of the administration of justice in public is to be found in R -v- Horsham Justices (1972) 2 AER 269.

15. If therefore restriction upon contemporaneous publication of proceedings by the media of Court proceedings constitutes an infringement of Article 34 in that the proceedings are not being held "in public" are there any circumstances in which such a restriction can be imposed?

16. The provisions of this section and the impact which Article 34.1 has upon it were considered by the Supreme Court and in the course of delivering the majority judgment

17. This clear statement of the law must be considered, I believe, in the light of the fact that Mr. Justice Walsh was not concerned with a case in which a conflict of constitutional rights existed. In the present case such a conflict in my view does exist and therefore the position must be considered in that context.

18. The hierarchy of constitutional rights recognised as existing by the Supreme Court in among other cases the People (Director of Public Prosecutions) -v- Shaw , 1982 IR page 1 was dealt with by Mr. Justice Kenny in the following terms:-

19. It is, in my view, clear beyond doubt that in reaching his decision in the present case the learned trial Judge had in the forefront of his mind the Accused's right to a fair trial in due course of law as was his right under Article 38.1 of the Constitution which provides:-

20. And he balanced that against the media right and the citizens right of freedom of expression under Article 40.6.1(i) which provides:-

21. The learned trial Judge in balancing these two rights clearly found that the Accused's right to a fair trial was paramount and ranked higher in the hierarchy of rights than the right of the media to contemporaneous reporting. In this conclusion, he was undoubtedly correct (see the judgment of Denham J. in D -v- D.P.P. 1994 2 IR 465).

22. Applying the test indicated by Mr. Justice Kenny in D.P.P. -v- Shaw , I am of the view that in making this judgment the learned trial Judge applied the correct test.

23. It has been submitted during the course of the hearing before this Court that apart from the argument based on Article 34.1 of the Constitution that a trial Judge has no power vested in him to make such an Order on the grounds that by doing so he alters the nature of the trial over which he is presiding and apart from any constitutional restraints to do so would be a purported exercise of a power which he did not possess.

24. I do not accept this submission. As a matter of common practice the media do not report the evidence and submissions made to the Court while a jury has withdrawn in criminal, and indeed civil matters, and moreover it is accepted that reporting may be delayed where the accused standing trial is the first of a series of cases so that juries in other cases in the series will not be prejudiced by knowing the evidence in the first case. It is submitted by the Applicants that the media withhold contemporaneous reporting in such cases only in the spirit of co-operation with the Court or alternatively by reason of a reluctance to face contempt proceedings if publications are made. I do not accept that this practice developed otherwise than as a result of a long-standing recognition of an Order prohibiting such publication made in the interest of ensuring a fair trial for the Accused in accordance with law. In dealing with this matter Lord Denning M.R. in R -v- Horsham Justices 1982 2 AER 269 at page 285 says:-

25. I am satisfied that once a trial Judge recognises the existence of a superior constitutional right as found by the Superior Courts then there is vested in him the power to take such measures as are necessary to ensure that the trial over which he is presiding is conducted in a fair manner and in accordance with the Constitution and to protect that constitutional right.

26. There remains now to consider the necessity which may have existed in the present case for the making of an Order of the depth and scope as was made in this case. It is submitted that the Order made was far wider than the occasion demanded and that if any restrictions on reporting were required then the situation would have been met by imposing less onerous restrictions.

27. The case before the learned trial Judge involved the charge of possession for sale and importation into the State of cocaine to the value of £47,000.00. It was the largest seizure of cocaine in Ireland and possibly in Europe to date. It was the first prosecution for alleged importation of the drug into the country under the 1996 Act. The case had attracted significant media interest. The learned trial Judge was aware of a case which was heard before him in Michaelmas 1996 ( People -v- Staunton ) which, by reason of inaccurate radio reporting by a local radio station had to be aborted during the hearing and the jury discharged. That was also a drug prosecution. The learned trial Judge was aware of the interest of the media and was aware that the accused had been in custody awaiting trial for upwards of five months and that they were foreigners. He expressed the view that "having regard to what happened and having regard to what was happening I could see it was going to happen again and this trial will be aborted and they will be back in custody for a considerable period". He expressed the view that he had reliable information that "it started on a sinister footing on Tuesday last". He was apparently referring at that stage to the fact that in a radio report put out on local radio on that date it was stated that a jury was being sworn for the case. That was inaccurate. No jury panel had been summoned for that date. He stated that it was also reported that some of the jury panel having heard this dropped what they were doing and ran to the Courthouse. He stated that this was an inaccurate report. The learned trial Judge noted a second matter. He noted that the application to discharge his original Order commenced at 4.20 p.m. but that at 2.30 p.m. on that afternoon the Evening Echo reported that it was "in Court today fighting an Order banning the newspaper from reporting the case and that the Irish Times also made a report on the matter today".

28. I am of the view that the learned trial Judge was entitled on that evidence to come to the conclusion that a total ban on contemporaneous reporting was necessary to protect the accused from risk. I make no judgment on whether I would have come to the same conclusion. I am not required to do so. I do find that on the evidence before him the trial Judge was justified in reaching the conclusion which he did.

29. With the use of hindsight if one were to test the necessity for an Order prohibiting publication, one only has to look at the fact that in a leading article of the Cork Examiner on Friday the 7th February a misreporting occurred which gives rise to an application to the Judge on the 10th February, 1997 and again in an article published in the Irish Times on the 7th February and on the 8th February a further instance of incorrect reporting occurred which gave rise to the necessity for a correction in this publication on the morning of Thursday the 13th February. It seems to me that the learned trial Judge must have had ample justification for his apprehension.

30. Argument has been addressed to me as to the degree of risk which must be present before a Judge should make an Order prohibiting or restricting publication.

31. It follows, therefore, in my view that before a Judge presiding over a trial imposes a ban on reporting, he must be satisfied of two things:

32. Applying these tests to the present case I am satisfied that the learned trial Judge was justified in concluding that a real risk existed.

33. Finally, it has been submitted to me that in his approach to this matter the learned Circuit Judge should have had regard to the wishes of the Accused and the fact that none of the Accused is in favour of the retention of the Order prohibiting publication and that certainly one and perhaps more of them support the Application in seeking to have the reporting ban lifted. It has been submitted to me that in these circumstances it was improper for the learned Circuit Judge to impose or retain the ban. On the other hand Counsel on behalf of the D.P.P. urges on the Court that this is not the correct test to apply and that the correct test is the trial Judge's obligation to ensure the fairness of the trial irrespective of the wishes of the Prosecution or the Accused.

34. With this submission I am in entire agreement. It would, in my view, be quite wrong for the trial Judge to conduct the trial in accordance with the wishes of either party or indeed both if in fact the result was to be a trial otherwise than in accordance with the Constitution.

35. Accordingly, I am of the view that the learned trial Judge was empowered to make the Order that he did, that in so doing he applied the correct criteria and law, that there was material upon which he was justified in reaching the conclusions that he did, that nothing in his approach to the case removed from him his jurisdiction and that the Order he made was valid. In these circumstances I refuse the relief sought.