The High Court has refused an application by Dublin criminal Martin Foley for an interlocutory order preventing the Sunday World publishing, pending the determination of Foley's full action against the newspaper, any material relating to him that would encourage or predict an attempt to endanger his life.
The court will later fix a date for the full hearing.
Foley, who is known as "The Viper", had argued that an article in the newspaper last December 5th, under the heading "Foley's A Dead Man Walking" and a sub-heading "Viper Isn't Trusted By Other Gang Members", had concluded with a prediction of his violent death.
An unnamed retired detective was quoted as saying: "I have always predicted that Foley will not die in his sleep and have told him this on many occasions. The only thing that amazes me is that he has lived for so long".
Foley applied for an interlocutory injunction to prohibit the Sunday World publishing any material about him which would endanger his life or health. The injunction, if granted, would have continued until the hearing of Foley's action against the paper.
A date for the hearing of that action has yet to be fixed and, following yesterday's decision, Mr Justice Kelly adjourned further proceedings relating to Foley's action until April 4th.
In a reserved judgment, the judge said Foley had contended that repetition of the statements between now and the hearing of his action could give rise to a risk to his life. On the other hand, the newspaper publisher contended it should be free to publish this material if it wished and that it stood over it as being true.
Mr Justice Kelly held the evidence fell short of what would justify the court curtailing the freedom of the newspaper to state facts and express opinions about Foley and his activities. He could find no evidence of any express exhortation or positive encouragement to persons to do violence to him.
Three previous attempts on Foley's life long ante-dated the publication of any material by the newspaper which he had identified as offensive. That fact supported the view that any risk to Foley's life or wellbeing came not from any publication by the newspaper, but from Foley's involvement in criminal activities and the criminal underworld.
The information in question was in the public domain and the bringing of the current proceedings with its attendant publicity had given the matter much wider circulation. An injunction restraining the newspaper from repeating the information would be of little value.
Mr Justice Kelly said the right to freedom of expression was provided for in Article 40 of the Constitution and Article 10 of the European Convention of Human Rights and was an important right which the courts "must be extremely circumspect about curtailing", particularly at the interlocutory stage of a proceeding.
Important as this right was however, it could not equal or be more important than the right to life.