DPP v M (W)
2004 WJSC-CCC 3638
THE CENTRAL CRIMINAL COURT
PUNISHMENT OF INCEST ACT 1908 S1
PUNISHMENT OF INCEST ACT 1908 S5
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S11
CRIMINAL LAW (RAPE) ACT 1981
CASEY CONSTITUTIONAL LAW IN IRELAND 2ED 441
Words & Phrases:
CRIMINAL LAW: proceedings
JUDGE: Before you say anything, gentlemen, I want to say something myself in relation to this case.
Mr. McENTEE: Before your lordship does, your lordship I think your attention should be drawn to the requirement that the court should be cleared, my lord.
JUDGE: I have directed that this portion of the proceedings be in public and you will understand why in a moment, Mr. McEntee, if you would bear with me. Mr. McENTEE: Certainly, my lord.
JUDGE: Since this matter was last before me I have considered the terms of the statute under which this prosecution has been brought. What is before me at the moment are pleas of guilty to offences under section 1 of the Punishment of Incest Act, 1908. Now I have considered the 1908 statute and it provides in section 5 that all proceedings under this Act are to be in camera. That is section 5 in its entirety. All proceedings under this Act are to be in camera. Now that provision is in contradistinction to the provisions found in the more modern statutes dealing with sexual offences. The Criminal Law (Rape)(Amendment) Act,1990, at section 11, which is in substitution for a similar provision in the Criminal Law (Rape) Act,1981, provides first of all for the judge to have a discretion in relation to the admission to court of persons, and it secondly provides as of right for the admission of bona fide members of the press.
Now provisions of the 1981 and 1990 statutes govern rape offences but they do not capture incest. It would appear to me that the position under statute law - I emphasise under statute law - as it stands is that an incest case must be heard in total privacy and secrecy with the admission of no persons, other than the immediate parties, including the press.
So that if the statute law were followed, an incest case would be heard in total secrecy with the community at large not being entitled to know even of the happening of the case, let alone any sentence which might have been imposed.
It seems to me on consideration of this matter that first of all such a situation would be unacceptable to the community at large. It seems to me also that it would not be in conformity with the Constitutional scheme of the administration of justice.
Now I have no doubt that if I had to, I would be capable of finding inherent powers to deal with this problem. But I think it would be undesirable if I were forced to do that because then I would have to set parameters, the setting of which is more properly in my view a matter for Parliament. I would have to decide for example whether the admission of members of the press, if I were admitting them under my inherent Constitutional powers, should be confined to the broadsheet press who report these matters soberly. For the avoidance of doubt I include the Irish Press in the category of broadsheet newspapers. I would have to decide whether I should admit certain other exploitative publications. I consider these more properly a matter to be considered by the Oireachtas than by myself.
Accordingly, having regard to the situation that prevails, what I intend to do is to put this matter back until tomorrow week...
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