THE SUPREME COURT

Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.

130/03
BETWEEN
MELTON ENTERPRISES LIMITED
APPLICANTS / APPELLANTS
AND
THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS

JUDGMENT of the Court delivered by Keane C.J. pursuant to Article 34.4.5 of the Constitution the 4th November 2003 [Nem Diss]

Introduction
This is the judgment of the court on the question raised in these proceedings as to the validity of certain provisions of the Censorship of Publications Act, 1946 (hereafter “the 1946 Act”) having regard to the provisions of the Constitution.

The factual background to the case is as follows. The appellants are a limited liability company incorporated in the United Kingdom which is the owner and proprietor of two newspapers which are sold in Ireland, under the titles respectively of “The Midweek Sport” and “The Weekend Sport”. Their combined sales in the State amount to approximately 25,000 copies per week. They are tabloid newspapers which compete in the State with other tabloid newspapers such as The Irish Sun, The Irish Mirror and The Star.

The first named respondent (hereafter “the Board”) are a statutory body established pursuant to s. 2 of the 1946 Act. The long title of that Act describes it as
“An Act to make further and better provision for the censorship of books and periodical publications”

Section 9 of the 1946 Act provides inter alia that
“[The Board] shall examine the issues recently theretofore published of every periodical publication in respect of which a complaint is made to them in the prescribed manner by any person, and if they are of opinion that the said issues:- 
(a) have usually or frequently been indecent or obscene, or …
(c) have devoted an unduly large proportion of space to the publication of matter relating to crime, 
and that for any of the said reasons the sale and distribution in the State of the said issues and future issues of that periodical publication should be prohibited, they shall by order prohibit the sale and distribution thereof accordingly.” 
On the 25th April, 2001, the Board served a notice in the prescribed form on the respondents in the following terms 
“You are the publisher of the periodical publication: Weekly Sport. 
In pursuance of the powers conferred on them by s. 7 and 9 of the [1946 Act] (as amended by the Health (Family Planning) Act, 1979 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995) [the Board] propose to determine whether they should make a prohibition order in respect of this periodical publication for the following reason - 
(c) that the issues recently published of the periodical publication (in respect of which a complaint has been duly made to them) –
(i) have usually or frequently been indecent or obscene,
(iii) have devoted an unduly large proportion of space to the publication of matter relating to crime,
and you are hereby notified that the Board will consider any representations you may wish to make to them before they make a decision in this case.” 
On the 2nd May, the applicant’s solicitors wrote to the Board indicating that they intended to make representations to the Board in respect of the notice. They requested the Board in that letter to furnish “precise details” of all complaints which had been received concerning their clients’ publication. On the 4th May, the Board replied stating 
“Enclosed is a copy of the only complaint exclusive of the identity of the complainant which the Board received in accordance with the censorship of publications legislation.” 
On the 14th May, the applicant’s solicitors wrote inquiring as to the legal basis on which the Board had withheld the complainant’s name. In their reply on 17th May, the Board said 
“The Board takes the view that there is no obligation resting upon it to divulge the identity of a complainant and it is not its policy to do so.” 
In further correspondence between the Board and the applicant’s solicitors, it transpired that there had been a further complaint, a copy of which was furnished to the applicant’s solicitors, the identity of the complainant again not being disclosed. On the 18th June, the solicitors wrote reiterating their view that the identity of the complainants should be divulged. They also inquired whether these were separate complaints and whether either of the complainants was a body corporate. In their reply on the 2nd July, the Board stated 
“The complaints of which you have been notified are separate complaints received from separate persons. Neither of the complainants is a body corporate. 
As already indicated to you it is the policy of the Board to protect the identity of complainants, in the public interest of encouraging vigilance among readers of publications and encouraging reports to the Board where appropriate.” 
In further correspondence, the Board said that as far as they knew there was no association between the persons who made the individual complaints. They also said that each complainant had been written to asking whether they wished to be identified and that neither complainant had authorised identification. The Board said that they had no reason to believe that the complaints had not been made “in good faith”. 
The two sides having maintained their respective positions in further correspondence, the applicants then sought leave from the High Court to issue proceedings by way of judicial review claiming 
(i) an order of certiorari quashing the decision of the Board not to disclose the identities of the complainants;
(ii) an order of prohibition preventing the Board from determining whether they should make a prohibition order in respect of the publication until they disclosed the identities of the complainants;
(iii) an order of mandamus directing the Board to disclose the identities of the complainants;
(iv) declarations that the decision of the Board not to disclose the identities of the complainants was inconsistent with the Constitution and not in accordance with natural and constitutional justice;
(v) a declaration that s. 9 of the 1946 Act was repugnant to Article 34.1 of the Constitution in providing for the exercise of judicial functions and powers, other than limited functions and powers, by the Board, a body which was not a court established under the Constitution. 
The complaints received by the Board and transmitted to the applicant’s solicitors said inter alia that the “Weekly Sport” was not a newspaper in the generally understood sense and devoted much space to material of a pornographic nature and advertisements offering the services of prostitutes and was of such a nature as to encourage the commission of rape, child abuse and other serious offences. 
Leave having been given to institute these proceedings, and a statement of opposition having been filed on behalf of the respondents, the substantive hearing came on before the High Court before Kearns J. In a reserved judgment, he refused to grant the applicants any of the relief claimed. The applicants have appealed to this court from that judgment and this is the judgment of the court on so much of the appeal as relates to the refusal of the High Court judge to grant a declaration that certain provisions of the 1946 Act were invalid having regard to the provisions of the Constitution. 
The Censorship of Publications code 
Censorship of books and periodicals was established for the first time in Ireland by The Censorship of Publications Act, 1929. Much of that Act was repealed by subsequent legislation and the principal provisions affecting the issues which arise in these proceedings are contained in the 1946 Act. 
Section 2(1) of that Act provides for the establishment of the Board, which is to consist of five persons appointed by the Minister for Justice, Equality and Law Reform. Section 3 provides for the establishment of the Censorship of Publications Appeal Board. Section 6, 7 and 8 of the Act are concerned with the examination of books, as distinct from periodical publications. 
Section 9(1), which provides for the examination of periodical publications in respect of which complaints are made to the Board, has already been set out. Section 9(3) provides that a prohibition order under the section is to last for a period of twelve months, six months or three months, depending on the intervals at which the publication was ordinarily published. 
Section 3 provides for the establishment of a Censorship of Publications Appeal Board consisting of five members, the Chairman of which is to be a judge of the Supreme Court, High Court or Circuit Court or a practising barrister or practising solicitor of not less than seven years standing and four ordinary members. The members are appointed by the Minister for Justice, Equality and Law Reform. Section 10 provides that the Appeal Board may at any time, on the application of the publisher of a periodical publication or of any five persons, each of whom is a member of Dáil Eireann or Seanad Eireann, revoke a prohibition order in respect of a periodical publication or vary the order so as to exclude from its application any particular edition or issue of the periodical publication. 
Section 11 provides that four members of the Board are to constitute a quorum at any of its meetings and that a prohibition order is not to be made unless at least three of the members vote in favour of the making of the order and not more than one member votes against it. Section 14 deals with the prohibition of the sale and distribution of prohibited publications. It provides that 
“(1) No person shall, except under and in accordance with a permit - 
(a) sell, or expose, offer, advertise or keep for sale, or 
(b) distribute, or offer or keep for distribution, 
any prohibited book or any prohibited periodical publication. 
(2) Every person who acts in contravention of subsection (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or at the discretion of the court, to imprisonment with or without hard labour for a term not exceeding six months or to both such fine and such imprisonment and, in any such case, to forfeiture of the relevant prohibited book or prohibited periodical publication.” 
Section 16 provides for the keeping of a register of prohibited publications by the Board and in ss. (9) provides that the fact that a periodical publication is at any particular time entered in the register shall be conclusive evidence that a prohibition order has been made in regard to it and that the order is at that time still in force. 
The 1946 Act has been amended in a number of respects by subsequent legislation, but none of the amending provisions is of any relevance to these proceedings. 
There is no definition in any of the Acts of the word “obscene”. Section 1 of the 1946 Act provides that 
“In this Act … the word ‘indecent’ includes suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave.” 
Submissions of the Parties 
On behalf of the appellants, Mr. John Gordon S.C. submitted that a finding of indecency of obscenity and/or the making of a prohibition order was tantamount to a finding that a criminal offence had been committed. He further submitted that the powers vested in the Board by s. 9 were judicial in nature and could not be regarded as “limited” within the meaning of Article 37 of the Constitution. He urged that, even if “limited”, the provisions in question enabled them to be exercised in what are properly described as “criminal matters”, contrary to the provisions of Article 37. He referred in support of these submissions to Article 40.6.1(i) of the Constitution which provides that the publication of indecent matter is an offence which is to be punishable in accordance with law and to the decisions of this court in Irish Family Planning Association Limited –v- Patrick Ryan & Ors [1979] I.R. 295, and Keady –v- the Garda Commissioner [1992] 2 I.R. 197 and of the former Supreme Court in Re. Solicitors Act, 1954 [1960] I.R. 239. 
On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board was a tribunal vested with limited functions and powers of a judicial nature as provided for in Article 37. The powers were clearly distinguishable from the power to strike a solicitor off the rolls purportedly vested in a disciplinary committee by the Solicitors Act, 1954 and were more akin to the orders upheld in Keady –v- the Garda Commissioner and in the High Court decision of The State (Murray) –v- McRann [1979] I.R. 133. They were clearly not powers in “criminal matters”, since neither the determination by the Board that a periodical publication was “indecent or obscene” nor the making by them of a prohibition order in respect of such a publication had as its consequence the subjecting of any person or body to any criminal liability. Insofar as passages in the judgments of O’Higgins C.J. and Kenny J. in Irish Family Planning Association Limited –v- Ryan indicated a contrary view, he submitted that they were obiter observations which were erroneous in law and should not be followed. 
Conclusions 
As the former Supreme Court held in Re. Article 26 of the Constitution and the Offences against the State (Amendment) Bill, 1940 [1940] I.R. 470 and as has been reiterated in subsequent decisions, where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy, as a matter of construction, must be clearly established. However, as laid down by the court in McDonald –v- Bórd na gCon & Anor [1965] I.R. 217, if in respect of the impugned provisions, two or more constructions are reasonably open, one of which is constitutional and the other unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction. The court must also apply the consequential presumption, identified in its judgment in East Donegal Cooperative Limited –v- The Attorney General [1970] I.R. 317 that the Oireachtas intended that any procedures permitted or prescribed by an Act of the Oireachtas will be conducted in accordance with the principles of constitutional justice. 
Article 34.1 of the Constitution provides that 
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …”
The administration of justice is thus exclusively the province of the courts. However, Article 37.1 provides that 
“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.”
The appellants argue that, since the powers and functions of the Board relate to “criminal matters”, they are not validated by Article 37.1. 
The court is satisfied that this submission is misconceived. Assuming that the powers and functions vested in the Board by the impugned sections are judicial in nature and that their exercise by the Board constitutes the administration of justice, they are clearly not powers and functions which are exercised by them in “criminal matters” within the meaning of Article 37.1. Where the required number of the Board form the opinion that recent issues of a periodical publication have usually or frequently been indecent or obscene and the Board make a prohibition order in respect of the publication, they are not adjudicating on the criminal liability of any body or person. No body or person as a result suffers any form of punishment normally the consequence of criminal conduct, i.e. imprisonment, the imposition of a fine or a community service order or the seizure or confiscation of any property. While the publication of indecent or obscene matter is an offence at common law (see R. –v- Hicklin [1868] L.R. 3QB 360) and its publication is also declared to be an offence under Article 40.6.1(i) of the Constitution, a person can only be rendered amenable by the criminal law in respect of any such publication in criminal proceedings properly instituted and heard by a court established under the Constitution. The court is satisfied that the expression “criminal matters” in Article 37.1 refers to criminal procedures of that nature and adopts the following statement of the law by Finlay P., as he then was, in The State (Murray) –v- McRann: 
“A crime or criminal charge must be defined … as an offence against the State itself or as a public offence. A criminal matter within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or presumably an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association with the determination of the question as to whether a crime against the State or against the public has been committed.”
The forming by members of the Board of an opinion that a publication has been frequently indecent or obscene and the making of a prohibition order, as has already been pointed out, do not constitute an adjudication by the Board that any person or body has committed a crime. A person who sells or distributes a publication in respect of which a prohibition order has been made becomes amenable to the processes of the criminal law under s. 14 and the publisher may also be prosecuted at common law in respect of the publication, but that does not give the proceedings of the Board any of the attributes of a criminal nature which are the essential features of “criminal matters” within the meaning of Article 37.1 of the Constitution. 
In support of their submissions, the appellants relied on two passages in the judgments of this court in Irish Family Planning Association Limited –v- Patrick Ryan & Ors. O’Higgins C.J. (at p. 313) said: 
“A prohibition order carries with it the inevitable implication that those responsible for the publication have been guilty of conduct deserving of public condemnation and also that they have probably been guilty of a criminal offence.” 
Kenny J. (at p. 20) said 
“The decision to prohibit the sale and distribution on the ground that it was indecent or obscene involved a very serious implication against them that each of them had committed a criminal offence, for it was rightly conceded by counsel for all the defendants that the publication of an indecent or obscene booklet is a crime under the common law: R. –v- Hicklin.” 
If the learned judges in those passages were indeed expressing the view that a decision by members of the Board that a publication was indecent or obscene and that a prohibition order should be made was in law an adjudication that the publishers had committed a criminal offence – and it is not clear that they were – the court is satisfied that that view was erroneous and should not now be followed. They were in any event at best clearly obiter observations, since there is nothing in the judgments of O’Higgins C.J. or Kenny J. which would suggest that their conclusion – that the Board should have considered whether they should communicate with the publishers before deciding whether to make a prohibition order – would have been any different, if the Board’s determination that the publication in question was indecent or obscene did no more than seriously injure the good name of the publishers. 
The alternative argument advanced on behalf of the appellants was that the powers conferred on the Board by s. 19 were judicial in nature but were not “limited” within the meaning of Article 37.1 and, accordingly, were powers and functions that could only be exercised by a court established under the Constitution. 
It was accepted on behalf of the respondents that the powers and functions in question were judicial. The issue, accordingly, that has to be determined is whether, although judicial, they were “limited” in nature within the meaning of Article 37.1. 
Giving the decision of the former Supreme Court in Re. Solicitors Act, 1954, Kingsmill Moore J. said 
“The test as to whether a power is or is not ‘limited’ in the opinion of the court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot possibly be described as ‘limited’.” 
In that case, the assignment to a disciplinary committee of the function of determining whether a solicitor should be struck off the rolls was held to be constitutionally invalid, because the functions so assigned were judicial in nature and not “limited” within the meaning of Article 37.1. It is clear from the judgment of Kingsmill Moore J. that two factors led to the court’s conclusion that the provisions were constitutionally invalid and not saved by Article 37.1. The first was the consequence for a solicitor of being struck off the rolls, which was described as a sanction of such severity that in its consequences it could be much more serious than a term of imprisonment. The second was that the act of striking solicitors off the rolls had always been reserved to judges. 
No such considerations arise in the present case. Undoubtedly, a determination by the Board that a person or body has published an indecent or obscene periodical is one which could adversely affect the reputation of the publisher. The same could be said of many other decisions which are legitimately made by bodies other than courts which are entrusted by the Oireachtas with powers and functions of a judicial nature. The specific consequence which follows – a ban on the sale or distribution of the publications for a limited period – is far removed in gravity from the disqualification of a person from carrying on a trade or profession. The effects of the Board’s functions, although in some instances at least of a serious nature, cannot in the view of the court, be described as “profound and far reaching”. It follows that the functions and powers vested in the Board by s. 9 of the 1946 Act, although of a judicial nature, are “limited” within the meaning of Article 37.1 of the Constitution. 
The court will, accordingly, dismiss the appeal from the order of the High Court refusing a declaration that the provisions of s. 9 of the 1946 Act are invalid having regard to the provisions of the Constitution. 

THE SUPREME COURT

Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.

130/03
BETWEEN
MELTON ENTERPRISES LIMITED
APPLICANTS / APPELLANTS
AND
THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS

JUDGMENT delivered the 4th November 2003 by Keane C.J. [Nem Diss]

The factual background to these proceedings has been set out in the judgment of the court on the constitutional issue.

The appellants submitted that, if, contrary to their submissions on the constitutional issue, the provisions of the Act were constitutionally valid, the Board were obliged to disclose to the appellants the identity of the complainants. Mr. Gordon, on behalf of the appellants, submitted that, unless their identity was disclosed, it would not be possible to determine whether the complainants were cranks, business competitors or persons acting for some other ulterior motive and not making complaints in good faith.

Mr. Gordon submitted that natural justice and constitutional justice required that a person against whom a complaint of a serious nature had been made should know who his accuser was. The requirements of fair procedures would not be met if one person was entitled to make a case against another without his identity being disclosed, thus enabling the accused person to test the bona fides of the complainant. He cited in support the decisions of this court in Re. Haughey [1971] I.R. 217, Kiely –v- The Minister for Social Welfare (No. 2) [1977] I.R. 276 and Gallagher –v- The Revenue Commissioners [1995] 1 I.L.R.M. 241 and of the High Court in Ryan –v- V.I.P. Cooperative Society Limited (Lardner J.; unreported; judgment delivered 10th January, 1989) and Flanagan –v- U.C.D. [1988] I.R. 724.

Mr. Gordon further submitted that the Board were not entitled to adopt an inflexible policy of declining in every case to disclose the identity of complainants. It is clear, he said, that they could not legitimately fetter their discretion in that way, citing in support Carrigaline Community Television Broadcasting Company Ltd –v- Minister for Transport, Energy and Communications [1997] 1 I.L.R.M 241.

On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board’s procedures fully complied with the requirements of natural justice and fair procedures. The appellants had been furnished with all the material contained in the complaints, other than the identity of the complainants, and the Board had invited the appellants to make whatever representations they considered appropriate before the Board reached any determination of the matter. The audi alteram partem rule had thus been fully complied with: the complainants were not in the position of accusers and the appellants did not enjoy the right to cross-examine them, the circumstances being entirely different from those considered by this court in Re. Haughey. 

Mr. Cross further submitted that it was for members of the Board, and them alone, to form an opinion as the whether the publication complained of was indecent or obscene or had devoted an unduly large proportion of space in the publication to matter relating to crime. The identity of the complainants was, accordingly, wholly irrelevant: the Board were required to arrive at their determination without having any regard to the identity of the complainants.
Mr. Cross further submitted that the Board’s policy of non-disclosure of the identity of the complainant did not amount to an unlawful abandonment of its discretion. It was accepted that it had such a discretion, but its stated policy was to ensure that members of the public came forward to make complaints and, as a result, not to disclose their identity. At the same time the policy was not operated so rigidly as to apply in all circumstances, since the Board would seek the consent of the complainant to his or her identity being disclosed as had happened in this case.

Article 5 of the Censorship of Publications Regulations, 1980 (S.I. No. 292 of 1980) made by the Minister for Justice in exercise of the powers conferred on him by s. 20 of the 1946 Act, provides that
“A complaint made under s. 9 of the Act in respect of a periodical publication shall
(a) be in writing,
(b) state the reason why the complainant considers that the sale and distribution in the State of the issues of the publication which are the subject of the complaint and of future issues of the publication should be prohibited,
(c) indicate the passages (if any) in the issues of the publication accompanying the complaint upon which the complainant places particular reliance in support of his complaint, and
(d) be accompanied by a copy of each of not less than three recent issues of the periodical publication.”

It was accepted in the course of the arguments in this court that the regulations could not have envisaged the making of a complaint by a person or body who insisted on remaining anonymous. The sole issue was as to whether the adoption by the Board of a policy of not disclosing the identity of the complainant to the publishers was contrary to natural justice and constituted an unfair procedure.

It is beyond argument that a person accused of a criminal offence has a constitutional right to test by cross-examination the evidence offered by or on behalf of his accuser: see the judgments of the High Court and this court in The State (Healy) –v- Donohue [1976] I.R. 325 and Donnelly –v- Ireland [1998] 1 I.R. 321. It is also clear that where, as in Re. Haughey, in the case of a tribunal other than a court, the conduct complained of, if it resulted in a conviction by a court of competent jurisdiction, would amount to a criminal offence, the person who is the subject of the complaint is entitled to test by examination the evidence relied on in support of the complaint. Similarly, in the case of a tribunal established pursuant to statute or to a contract whose findings determine the legal rights of parties, the parties have the right to test the evidence on which the tribunal proposes to rely in reaching its determination by examination or, at the least, where there is no oral hearing, to be furnished with the witness statements or other material furnished to the tribunal by the opposing party. 

Thus, in Kiely –v- The Minister for Social Welfare (No. 2), a person claiming to be entitled to a particular social welfare benefit was held to have been deprived of natural justice where an oral hearing was held by the tribunal, but the medical evidence on behalf of the relevant Minister was in written form only. Similarly, in Ryan –v- V.I.P. Cooperative Society Ltd, it was held that the taxi driver who was the subject of complaints to the defendant’s society of which he was a member was entitled to be furnished with the names and addresses of the persons who had made the complaints and details of the allegations which had been made. Again, in Gallagher –v- The Revenue Commissioners & Ors, a customs and excise officer against whom complaints had been made that he had deliberately undervalued vehicles and thereby caused a loss of revenue to the State was entitled to test the evidence furnished to the Revenue Commissioners by cross-examination. A similar conclusion was reached in Flanagan –v- University College Dublin, where a charge of plagiarism had been made against a student and a disciplinary committee held a meeting to consider the complaint. It was held that she was entitled to receive in writing details of the precise charge being made, to hear evidence of the case at the meeting and to challenge that evidence by cross-examination.

There is, however, one feature present in all those decisions which is conspicuously absent from the present case. In each instance, the relevant tribunal was involved in the ascertainment of objective facts on the basis of which it would then arrive at its adjudication or, in the case of Re. Haughey, submit its conclusions to the Oireachtas in the form of a report. In total contrast, the Board in this case is not engaged in an inquiry which, if properly conducted, would result in impartial and objective findings of fact. It is concerned with the wholly subjective process of determining whether, in the opinion of at least three of its members, the recently published issues of “The Weekend Sport” have usually or frequently been indecent or obscene or have devoted an unduly large proportion of space to the publication of matter relating to crime.
The history of obscenity laws in many countries affords eloquent testimony of just how subjective such determinations, whether made by judges, juries or other bodies, can be. It would, however, be difficult to find a more graphic illustration than the operations of the Board itself at an earlier stage of its history, when it prohibited the sale and distribution in Ireland of a vast range of books as being indecent or obscene, many of which would now be generally acknowledged to be masterpieces of 20th century literature.

I am satisfied that those considerations are of critical importance when one comes to consider the precise role played by complainants in the censorship of publications code. It is reasonable to assume that, when that code was introduced in Ireland for the first time in 1929, the Oireachtas and the Executive were of the view that it would have been an impractical and time wasting process to employ inspectors for the purpose of monitoring the vast range of books and periodicals on sale in the State. They relied instead on a system of voluntary complaints in the expectation, which was not disappointed, that there would be a significant number of persons or organisations willing to bring to the attention of the Board books and periodicals for examination by them. Given that the decision in any particular case as to whether a publication was indecent or obscene was exclusively a matter for the subjective determination of the individual members of the Board, the complaints mechanism was no more than a trigger to set the banning procedures in motion. (It is also of interest to note that, in the case of books as contrasted with periodical publications, the Board can initiate the examination of a publication even in the absence of a complaint.) Moreover, while under the 1929 Act the complaint had to be made to the Minister for Justice in the first instance who then had a discretion to refer the complaint to the Board, that requirement was dropped when the 1946 Act was enacted. 

While Article 5(b) of the Regulations requires a complaint to state the reason why the complainant considers a prohibition order should be made, there seems no reason to suppose that this requirement would not be met in a case such as the present by the complainant simply stating that in his or her opinion the passages identified were indecent or obscene or that the extent of them indicated, again in his or her opinion, that an unduly large proportion of the space in the periodical had been devoted to the publication of material relating to crime. Given the subjective nature of the view which the members of the Board have to form, that would seem to be a sufficient basis for invoking its jurisdiction.

That is not to say that, where, as in the present case, the complainants offered detailed reasons as to why, in their view, the publication should be regarded as “indecent or obscene”, the furnishing of such reasons would in any way invalidate the complaint. It seems clear, however, that members of the Board would be acting ultra vires the powers conferred on them if they were to adopt the view of the complainants on any of the matters referred to in their complaints, unless, of course, it coincided with their own independently formed view. Undoubtedly, the requirements of fairness and openness demand that the publishers should be furnished with all the material in the complaints and the Board must at least consider whether they should be invited to make representations to the Board in respect of the complaints. However, while an issue has arisen in these proceedings as to the obligation on the Board to disclose the identities of the complainants to the publishers, no other issue arises as to the fairness and openness of the procedures adopted by them.

As to the relevance of the identities of the complainants, I have already pointed out the sharp contrast between the statutory procedures in this case and the procedures under scrutiny in the decisions on which the appellants rely. Whether the complainant is a public figure whose particular status might lead to his or her view that a publication should be banned being treated with respect by some members of the public, or is a crusading zealot whose views might only evoke support from those of a similar way of thinking, or is a meddlesome crank or busybody or is even a business competitor of the publisher are not factors which the Board are entitled to take into account in any way when reaching the purely subjective opinion they are required to form. 

It is clear, for the reasons already given, that the procedures on which the Board embark, once a complaint is made (or even without such a complaint in the case of a book), bear no resemblance to the adversarial procedures which, in the case of other tribunals, may require the invocation of the fair procedures identified in cases such as Re. Haughey and Kiely –v- The Minister for Social Welfare which necessarily include, in at least some instances, the disclosure of the identity of complainants and the testing of the substance of their complaints by the traditional method of cross-examination. While the Board are obliged to afford fair procedures to the appellants to the extent indicated by this court in Irish Family Planning Association –v- Ryan, and have done so, that obligation does not, in my view, extend to disclosing the identities of the complainants, if, in the opinion of the Board, there are policy reasons for not disclosing that identity and that policy cannot objectively be regarded as arbitrary, capricious or unreasonable.

I am satisfied that, the Oireachtas having decided that a system of complaints by the public should be an integral part of the censorship of publications system and should be the only mechanism for initiating the censorship procedure in the case of periodical publications, the Board are entitled to take the view that members of the public would be discouraged from exercising their statutory right to complain if their identity was made public in every case. It inevitably follows that the Board, if satisfied that such a policy should be adopted in order to achieve the objectives of the legislation, could not legitimately differentiate between different complainants. It seems to me that, for those reasons, decisions such as Carrigaline Community Television Broadcasting Company Ltd –v- Minister for Transport, Energy and Communications which deal with the extent to which bodies invested with statutory powers may exercise them in accordance with a predetermined policy have no relevance to the present case.

I would dismiss the appeal and affirm the judgment and order of the High Court.