THE IRISH Timeshad a right as trustee of the public interest to report on matters of public interest, the High Court heard yesterday.
Cian Ferriter SC, for The Irish Times, said the case of Daniel McAnaspie, who died while in HSE care, was clearly of unanswerable public interest and had been discussed in the Oireachtas.
The High Court is considering nine questions posed by the District Court arising from an application from Caitriona McAnaspie, Daniel’s sister, for the disclosure of documents relating to his care by the HSE, which were prepared for the District Court by his guardian ad litem (appointed by the court to act on his behalf).
The Irish Timesis seeking to report on the family's application, which would normally take place in camera. Mr Ferriter said The Irish Timeswas not seeking disclosure of the documents. At this time it was seeking to report on the application and arguments made by the family and the HSE.
The courts were obliged, particularly because of the European Convention on Human Rights, to carry out a balancing exercise when considering disclosure.
Asked by Mr Justice George Birmingham if his client had not achieved its objective when Judge Brendan Toale, the first District Court judge to hear the family’s application, ruled that it could report on the case, Mr Ferriter said when the matter went to Judge Conal Gibbons, who had control of the case, he said he did not have jurisdiction to give such permission.
“We invited Judge Gibbons to make the same order as Judge Toale had. He said he didn’t have jurisdiction. That’s why we’re here. If he had [given permission], we wouldn’t be here at all.”
If the court ruled that if the District Court did have jurisdiction to grant permission, then that court would have to carry out a balancing exercise, in line with the requirements of the convention.
Referring to one of the questions relating to whether restrictions should be imposed on reporting the application, Mr Ferriter said the High Court should give guidance as to the criteria to be applied in considering this issue.
“Restrictions should be necessary, should be justified in pursuit of a legitimate social need and proportionate,” he said.
Colman Fitzgerald, for the guardian ad litem, said it would be unconstitutional to have an absolute prohibition on the publication of any material emanating from an in camera hearing. Such an absolute prohibition would mean that, if perjury emerged in the course of such a hearing, or gross professional negligence, nothing could be done about it.
The logic of a total prohibition on the disclosure of any information was that the childcare authorities in England or Northern Ireland could not have access to material about a child who had been in care in the Republic.
Peter Finlay SC, for the HSE, said this was an issue on which the Oireachtas should legislate if it was intended that material from an in camera case should be disclosed. It had not done so, and here the court was being asked to legislate. If the District Court was allowed to order disclosure, it would create a precedent, a new authority and jurisdiction for the District Court.