One of the fundamental pillars of the justice system in liberal democracies is that in general justice must be administered in public. This principle is enshrined in Article 34.1 of the Constitution. It means, for example, that our laws are publicly available, trials take place in public and judgments are published.
Crucially, however, in the Irish legal tradition this principle does not extend to public rights of access to documents presented in open court. This meant that a member of the public must attend court or else rely on the press reports to find out what takes place in our court rooms. Court filings are not considered to be particularly confidential and are often to be found lying around empty court rooms or can be acquired by a journalist in the know from lawyers, however the courts administration would never disclose a document to a member of the public.
Of course it doesn’t have to be this way. Consider the United States which has a common law justice system similar to ours. It publishes all court filings online as soon as they are filed. The system, called Public Access to Court Electronic Records (PACER) provides online access to scans of original documents for a fee. So through PACER it was easier for the Irish public to find out what was going on in the American trials of David Drumm and Sean Dunne than it was in relation to similar actions being taken in Ireland.
That been said the system is slowly shifting towards a more open access to Court documents.
In March 2013 Judge Gerard Hogan (then a High Court judge) ruled in AIB -v- Tracey (No 2) [2013] IEHC 242 that under Article 34.1 documents opened and effectively read into the record of the court should be available to the public without needing permission from a judge. Hogan J stated:
22. The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse.
23. In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court or which was protected by the in camera rules or by reporting restrictions imposed, for example, pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008
Unfortunately judge Hogan’s ruling has yet to be implemented by the Courts Service or indeed followed by some of his former High Court colleagues (see Lowry -v- Mr Justice Moriarty [2014] IEHC 602). Perhaps we will have to wait and see given that the Tracey judgment is now under appeal to the Supreme Court – a court which incidentally itself directed that the public be provided with access to filed submissions once the hearing in a case had concluded.
To prove the point I successfully accessed written submission in an NAMA -v- Commissioner for Environmental Information (Supreme Court No. 159/2013) an appeal concerning access to environmental information. Although the documents appear to have been held electronically by the Supreme Court Office I had to pay a €40 fee (including €1 per four pages for copying) and collect them personally in Dublin.
So here they are in case any member of the public wants to exercise their rights under the Constitution to access written submissions to the courts. (NAMA submission, CEI Submission)
CEI_Submission NAMA_submission