DPP v W.M.

• Jurisdiction: Ireland
• Judgment Date: 17 February 1995
• Date: 17 February 1995
• Docket Number: (Bill No. 30/94)
• Court: High Court

High Court

High Court

(Bill No. 30/94)

The People (Director of Public Prosecutions) v. W.M.

The People (at the suit of The Director of Public Prosecutions)

and

W.M

Cases referred to in this report:—

The People (Director of Public Prosecutions) v. Barr (Unreported, Court of Criminal Appeal, 21st July, 1992).

In re R. Ltd. [1989] I.R. 126; [1989] I.L.R.M. 757.

In re Redbreast Preserving Co. Ltd. (1956) 91 I.L.T.R. 12.

Practice and procedure - In camera hearing - Administration of justice otherwise than in public - "All" proceedings in incest cases to be heard in camera - Whether press precluded from court during trial - Whether precluded during pronouncement of sentence - Whether representatives of Health Board having custody of child of accused precluded from court if not giving evidence - Whether representatives of Health Board entitled to be informed of conviction or sentence - Whether person giving evidence precluded from discussing case - Whether court having discretion to admit non-parties - Whether court could circulate synopsis of evidence and sentence - Whether statutory provision requiring all proceedings in incest cases to be held in camera enjoying presumption of constitutionality - Punishment of Incest Act, 1908 (8 Edw. VII, c. 45), s. 5 - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 45, sub-s. 3 -Constitution of Ireland, 1937, Article 34, s. 1.

Central Criminal Court.

The facts and the relevant statutory provisions have been summarised in the headnote and fully set out in the judgment of Carney J., infra.

The accused having pleaded guilty to certain offences under the Punishment of Incest Act, 1908, the matter was put back for sentence. Submissions were invited as to the right of the press to attend at the sentence. Arguments were heard on the 17th November, 1994.

By Article 34, s. 1 of the Constitution of Ireland, 1937:—

"Justice . . . save in such special and limited cases as may be prescribed by law, shall be administered in public."

Section 45, sub-s. 3 of the Courts (Supplemental Provisions) Act, 1961, providesinter alia:—

"Any provision contained in any statute of the Parliament of the former United Kingdom . . . which provided for the administration of justice otherwise than in public and which is not in force solely by reason of its being inconsistent with the provisions of the Constitution of Saorstát Éireann éireann or the Constitution . . . shall have full force and effect."

Section 5 of the Punishment of Incest Act, 1908, provides as follows:—

"All proceedings under this Act are to be held in camera."

The accused pleaded guilty to charges under the Act of 1908. When the matter came on for sentence, the court invited submissions as to whether members of the press were entitled to be in court.

Held by Carney J., in directing the press and all others not directly concerned with the case to withdraw, 1, that s. 5 of the Act of 1908 had not survived the enactment of the Constitution, as it had been in conflict with Article 34 and had not been saved as being a special and limited case prescribed by law.

2. That s. 5 of the Act of 1908 had been restored to full force and effect by s. 45, sub-s. 3 of the Act of 1961; that both s. 45, sub-s. 3 of the Act of 1961 and s. 5 of the Act of 1908 now enjoyed a presumption of constitutionality; and that accordingly, their constitutional validity could not be challenged in the instant proceedings.

3. That s. 5 fell into the category of statutory provisions which made privacy mandatory; so that the court did not have any discretion to allow the case to be heard otherwise than in total secrecy.

In re R. Ltd. [1989] I.R. 126 considered.

4. That since s. 5 of the Act of 1908 required "all" proceedings under the Act to be heard in camera, the sentence could not be pronounced in public.

5. That it was not open to the court to release a synopsis of the evidence and sentence.

The People (Director of Public Prosecutions) v. Barr (Unreported, Court of Criminal Appeal, 21st July, 1992) followed.

The court subsequently received a letter from solicitors acting for the Eastern Health Board, stating that the Board had custody of one of the accused's children; that wardship proceedings might be initiated in respect of any other child in the accused's custody; and asking to be informed as to whether the accused had been convicted and sentenced, or released.

Held by Carney J., in withholding the information sought, 1, that while the Health Board was manifestly entitled to receive the information, the court was precluded from disclosing it, as it would fly in the face of the words "in camera" to indicate what had taken place to a person not present or entitled to be present in court.

2. That were the case still ongoing, the court would be required to refuse admission to the social workers of the Health Board unless they were giving evidence at the trial or as to sentence, and even then they would be precluded under the law of contempt of court from subsequent discussion of the case.

Semble: That in cases, such as those referred to in s. 6 of the Criminal Law (Rape) (Amendment) Act, 1990, where the Oireachtas had conferred a discretion on the trial judge to admit appropriate persons to court, "appropriate persons" would readily include social workers and representatives of a Health Board, and in appropriate circumstances, other persons such as representatives of a Rape Crisis Centre.

Cur. adv. vult.

Carney J.

The accused has pleaded guilty to certain offences under the Punishment of Incest Act, 1908, and is awaiting sentence. Evidence in relation to the facts of the case has already been taken following which Mr. MacEntee asked that the matter be put back for the purpose of his obtaining and placing before the court some testimonials.

In accordance with the practice which has...