Surprise application by Attorney General to have two individuals identified will be heard tomorrow, writes Mary Carolan

The High Court has been asked to name the two people who wanted to take an anonymous case against the Ansbacher Inspectors.

Following the decision of Mr Justice McCracken yesterday, that the two individuals could not take an anonymous case and that justice must be administered in public, Mr Feichin McDonagh SC, counsel for the Attorney General, Mr Michael McDowell SC, made an application that the two now be identified.

The surprise application is due to be heard tomorrow.

In his judgment Mr Justice McCracken said the identification of parties seeking justice "is a small price to be paid to ensure the integrity and openness of one of the three organs of the State, namely the judicial process, in which openness is a vital element".

"It is often said that justice must not only be done, but must also be seen to be done, and, if this involves innocent parties being brought before the courts in either civil or criminal proceedings, and wrongly accused, that is unfortunate, but it is essential for the protection of the entire judicial system." If he had to consider a hierarchy of rights in the case - and he took the view he did not - he had "no hesitation whatever in saying that the right to have justice administered in public far exceeded any right to privacy, confidentiality or a good name".

The judge's ruling means that if the two wish to continue their action, they must disclose their identities. After the decision, Mr David Barniville, for the two, asked that the matter be mentioned tomorrow to allow time to consider the ruling.

Mr Feichin McDonagh SC, for the Attorney General, said he was consenting to the matter being mentioned tomorrow but would be arguing it was consistent with the court's decision that the identity of the two applicants should be disclosed then.

The case arises from the appointment by the High Court in September 1999 of inspectors to investigate the affairs of Ansbacher (Cayman) Limited, (formerly Guinness Mahon Cayman Trust Limited, Cayman International Bank and Trust Company Limited). Their report is almost complete and is expected to be presented to the High Court shortly.

The applicants want to prevent the publication of their names as Ansbacher clients in the report. They secured leave from the High Court to bring a motion that their case be heard in camera, subject to the outcome of legal argument as to whether the motion itself could be heard in camera.

Last week, Mr Justice McCracken heard legal arguments on whether he had any power to order an in-camera hearing of the motion or to direct the matter be heard in any way which prevented publication of the applicants' names in the proceedings.

Yesterday, the judge found the applicants were not entitled to proceed anonymously.

He said Article 34.1 of the Constitution required that justice be administered in public except "in such special and limited cases as may be prescribed by law". By its very nature, Article 34.1 required the attendant publicity, including identification of parties seeking justice. He found there was no possible harmonious construction of the Constitution under which the applicants' personal rights to their good names and to privacy could be considered to give rise to any special or limited cases prescribed by law.

The essential question was whether the right to one's good name, under Article 40.3, could be said to be a constitutional provision, which could be said to be a special and limited case prescribed by law as referred to in Article 34.1.

The case concerned a possible conflict between a personal right of the citizen and constitutional provisions under Article 34.1, the latter being a law enacted not by the State but by the people. Furthermore, Article 40.3 only applied "as far as practicable" and only protected citizens from "unjust attack". It was not an absolute guarantee of the citizen's personal rights.

The judge noted no case had been cited to him in which a right to a good name, to privacy could justify anonymity in court proceedings.

To extend the right to privacy or to a good name to anonymity in a court case could not possibly be said - in light of Article 34.1 - to be a practical way for the State to defend and vindicate those rights. The only harmonious construction of those personal rights must be that their exercise did not interfere with other constitutional requirements, which were inserted for the common good.

While it might violate a person's privacy and good name to have them charged with a serious offence before the courts, it could not be argued their constitutional rights were violated if they were named.

He also noted that, if the inspectors' report named the applicants as Ansbacher clients, they could, depending on the circumstances, have rights to seek a judicial review of the decisions of the inspectors.

If the media drew unjustified inferences from the inspectors' report, the applicants could take defamation proceedings. If the applicants were charged with a criminal offence as a result of the report, they would have the full protection of the State in defending themselves.

In reaching his conclusions, the judge relied on several legal authorities, particularly the 1998 Supreme Court decision in a challenge by The Irish Times and other media to restrictions imposed on the reporting of a major drugs trial in Cork.

He also relied on several High Court decisions, including a 1996 decision rejecting an application by the late Mrs Brigid McCole to take under an assumed name proceedings against the Blood Transfusion Service Board.

He said the Supreme Court, in The Irish Times case, made quite clear that a desire for confidentiality could not under any circumstances be considered one of the special and limited cases (for an in camera hearing) prescribed by law.

Full text of judgment at www.ireland.com