The actions of the Censorship of Publications Board in the way it handled its banning of In Dublin magazine - yesterday restored to the newsagents' shelves - has been described by a High Court judge as "incredible" and "reprehensible".
Mr Justice O'Donovan said yesterday the board had been unfair to the magazine's publisher, Mr Michael Hogan, in refusing to meet him and had been "nothing less than reprehensible" in suppressing the fact it had predetermined the fate of the magazine while conducting a correspondence as to its future.
Granting Mr Hogan an order authorising the continued sale and distribution of In Dublin until the court determines the validity of the board's ban, he directed that no advertisements for health clubs or escort agencies be carried in any future publication.
Mr Joe Finnegan SC, counsel for Mr Hogan, had told the court that the board had banned publication and sale of In Dublin on the grounds of a complaint that it contained indecent and obscene material.
Mr Justice O'Donovan said it was clear to him, from the evidence, that the board had not considered the complaint to necessitate a prohibition order without further inquiry, otherwise it would not have invited submissions from Mr Hogan as long ago as December 1998.
It seemed to him that two requests from Mr Hogan seeking confirmation that the board was only concerned with advertising material and seeking a meeting to identify changes the board might suggest, were eminently reasonable ones, but they had been met with no comment or response from the board.
Mr Hogan had further submitted to the board examples of suggested changes to advertising material, but again this had been met without comment or response.
A similar attitude had been forthcoming to a letter from Mr Hogan seeking the board's comments and recommendations.
The board had failed to confirm its objections were limited to advertisements or what changes it would consider acceptable. Furthermore it had not agreed to a meeting and, incredibly, Mr Hogan had not been advised that at a meeting of the board on April 18th last it had voted in favour of making a prohibition order.
The board had informed Mr Hogan by letter on August 3rd of its order prohibiting the sale and distribution of In Dublin magazine within the State on and from August 10th.
Mr Justice O'Donovan said that insofar as the application for injunctive relief by Mr Hogan was concerned it was not necessary for him to decide whether the complaint made to the Censorship Board was justified or whether, on foot of it, the board was entitled to prohibit its sale and distribution.
What he had to consider was whether there was a fair issue to be tried arising on the grounds on which relief by way of judicial review was being sought and, if Mr Hogan succeeded, whether an award of damages would be an adequate remedy in lieu of the injunction, and also whether the balance of convenience justified the injunctive relief sought.
The question whether the board's prohibition of the publication of a periodical was a limited function or could be regarded as administering justice, which was constitutionally reserved for judges and the courts, was not a matter for him to decide in the circumstances of the application before him. Because the exercise of the board's powers could, and in this case would, affect the livelihood of many, he had no doubt that the question whether the board's role was a limited function was arguable and that there was a fair issue to be tried.
Mr Justice O'Donovan said it was common case that the board was obliged to adhere to the principles of natural and constitutional justice and basic fair procedure .
For the purpose of the application he did not have to decide whether such principles had been observed but merely be satisfied there was a fair issue to be tried. He felt it was clear from his summary of the evidence and his comments that he had no doubt on this matter.
The board's failure to meet Mr Hogan to discuss what changes might be expected, its failure to suggest what changes might be acceptable, its continued correspondence with him after it had already decided to prohibit the sale and distribution of In Dublin without advising him of that fact, all combined to suggest that the board had been totally unmindful of the principles of natural and constitutional justice and basic fair procedures when arriving at its decision.
Given that the cessation of the publication of In Dublin would threaten the livelihood of many people, and he was satisfied it would, he was not persuaded that an award of damages to Mr Hogan would be an adequate remedy in the event of his succeeding many months hence in overturning the board's decision.
Mr Justice O'Donovan said he deplored the fact that Mr Hogan had published and distributed the Dublin magazine in the same format, substance and content of In Dublin in that it circumvented the prohibition order.
While it was of no credit to Mr Hogan that he had published it, he did not consider its publication a contempt of court. While it may have been contrary to the spirit of the law, it was not unlawful.
The cessation of publication of In Dublin for six months would probably cause irreparable damage to the goodwill of the magazine and would certainly cause hardship to those who depended for their livelihood on its publication while no hurt, other than loss of face, would be suffered by the board.