Health and Service Executive v L.N.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 09 October 2012
• Neutral Citation: [2012] IEHC 611
• Court: High Court
• Docket Number: [2011 No. 1124 SS]
• Date: 09 October 2012

[2012] IEHC 611

THE HIGH COURT

[No. 1124 S.S./2011]

Health Service Executive v N (L) & Ors

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

HEALTH SERVICE EXECUTIVE

APPLICANT

AND

L.N. AND J.Q.

RESPONDENTS

AND

TIM VAUGHAN GERALDINE KENNEDY

AND

MAURICE GUBBINS

NOTICE PARTIES/APPELLANTS

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CHILD CARE ACT 1991 S13

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S18

O'DONNELL SOME REFLECTIONS ON THE LAW OF CONTEMPT 2002 2 JSIJ 87

MCAULEY & MCCUTCHEON CRIMINAL LIABILITY: A GRAMMER 2000 315

R v EVENING STANDARD CO LTD, EX PARTE AG 1954 1 QB 578 1954 2 WLR 861 1954 CRIM LR 135

EASTERN HEALTH BOARD v FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL 1998 3 IR 399 1998/18/6670

S (PS) v S (JA) (ORSE C) UNREP BUDD 22.5.1995 1998/10/2967

AG v O'KELLY 1928 IR 308

AG v CONNOLLY 1947 IR 213 1947 81 ILTR 92

R v DOLAN & ORS 1907 2 IR 260

KELLY v O'NEILL & BRADY 2000 1 IR 354 2000 1 ILRM 507 2000/11/4219

PICKERING v LIVERPOOL DAILY POST & ECHO NEWSPAPERS PLC 1991 2 AC 370 1991 2 WLR 513 1991 1 AER 622

CHILD CARE ACT 1991 S31

CHILD CARE ACT 1991 S29(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

HEALTH SERVICE EXECUTIVE v MCANASPIE (DECEASED) 2012 1 IR 548 2011/24/6472 2011 IEHC 477

EASTERN HEALTH BOARD v E & ORS (NO 2) 2000 1 IR 451 1999/11/2666

CONSTITUTION ART 40

MARTIN & DOORLEY v LEGAL AID BOARD & ORS 2007 2 IR 759 2007/39/8098 2007 IEHC 76

MIGGIN (A MINOR) v HEALTH SERVICE EXECUTIVE & GANNON 2010 4 IR 338 2010/34/8533 2010 IEHC 169

B & P v UNITED KINGDOM 2002 34 EHRR 19 2001 2 FLR 261 2001 2 FCR 221

PRACTICE AND PROCEDURE

Contempt

Case stated - In camera rule - Publication of material tending to disclose result of child care proceedings - Breach of in camera rule - Contempt of court - Criminal contempt - Mens rea - Strict liability - Publication in good faith - Distinction between intention to breach law and intention to act in particular way - Rationale for in camera requirement - Whether contempt of court by breach of in camera rule truly criminal or regulatory in nature - Whether mens rea required for finding of contempt of court - Whether ECHR or Irish law required that publication of reports complained of be permitted - Whether rule absolute - Whether publication of fact of making of child care order where children in question not identified by publication amounted to contempt of court - Whether sentence passed lawful - EHB v Fitness to Practice Committee of the Medical Council [1998] 3 IR 399; PSS v JAS & Independent Newspapers (Ireland) Ltd (Unrep, Budd J, 22/5/1995); R v Dolan [1907] IR 260 and HSE v McAnaspie (Unrep, Birmingham J, 15/12/11) followed - Evening Standard Company Ltd ex p Attorney General [1954] QB 578; AG v O'Kelly [1928] IR 308; AG v Connelly [1947] IR 213; EHB v E (No 2) [2000] 1 IR 451; Martin v Legal Aid Board [2007] 2 IR 759; Miggin (a minor) v Health Service Executive [2010] IEHC 169, [2010] 4 IR 338 and B & P v UK (2002) EHRR 529 considered - Kelly v O'Neill and Brady [2000] 1 IR 354 and P v Liverpool Daily Post [1991] 2 AC 370 distinguished - Child Care Act 1991 (No 17), ss 13, 17, 18, 29(1) and 31 - European Convention on Human Rights and Fundamental Freedoms, art 6 - Case stated answered (2011/1124SS - Birmingham J - 9/10/2012) [2012] IEHC 611

Health Service Executive v N(L)

Facts: On the 21st January 2011, Judge Con O"Leary of the District Court in Cork directed summonses against the editors of a number of national newspapers to appear before him to show cause why they should not be subject to process of execution including imprisonment for contempt of court. On the 25th February 2011, Judge O"Leary found , inter alia, that the editors of the Evening Echo, the Irish Examiner, and the Irish Times had, in breach of the in camera rule, published material tending to disclose the result of proceedings that were brought in relation to two children, pursuant to the Child Care Act 1991, by the Health Service Executive. A fine of €1000 was imposed upon each. This was despite the fact that it had been found that these editors had acted in good faith after they had sought legal advice on the permissibility of publishing the articles beforehand.

The three editors ('the appellants') sought to appeal the decision. As a result, Judge O"Leary stated the case to seek the opinion of the High Court on four questions: whether he was correct in law in determining that the appellants were in contempt of court despite it being found that they had not deliberately intended to publish the relevant material in violation of the in camera rule; that he had acted in accordance with the European Convention on Human Rights; whether he was correct in law in determining that the appellant"s were in contempt of court in publishing the fact that an order had been made in proceedings under the Child Care Act 1991, even though the same publication did not directly or indirectly identify children who were the subject of the proceedings; and whether the sentence was lawful if the appellants were, in fact, in contempt of court.

It was noted by Birmingham J. that whilst mens rea is usually an essential element of a crime, there are certain strict liability offences where this is not required. It was also said that the available case law that related to breaches of the in camera rule seemed to indicate that proof of an intention to breach the rule or recklessness as to whether it was breached was not an essential element. It was, therefore, held that the District Judge was correct to hold that the appellants were in contempt of court despite there being no proof of intention. On the second question, it was held that there was no basis for the appellant"s to argue that the District Judge"s decision was in contravention of the European Convention on Human Rights because the Convention permitted certain proceedings to be held in private, such as where it is in the interests of juveniles or in the interests of the protection of the private life of the parties.

On the third question, it was held that the appellants were wrong to suggest that they had only published the mere fact of the making of an order in proceedings brought under the Child Care Act 1991 and nothing more. It was clear that certain information about the children involved was also published, which was sufficient to inform a significant section of the public as to who they were. This was held to be in breach of the children"s entitlement to anonymity to protect them from the negative effect s of publicity. On the fourth question, it was held that for the reasons stated above, the District Judge was entitled to sentence the appellants as it had because a £1000 fine each was well within the sentencing range available to the court.

1 JUDGMENT of Mr. Justice Birmingham delivered the 9th day of October 2012

2 1. This matter comes before the Court by way of a case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as amended by s. 51 of the Courts Supplemental provision Act 1861, Judge Con O'Leary of the District Court having signed a case stated on the 8 ^thJune, 2011.

3 2. Judge O'Leary stated this case in circumstances where on the 21 ^st January, 2011, he had, of his own motion, directed the issue of summonses to Mr. Timothy Vaughan, editor of the Irish Examiner, Ms. Geraldine Kennedy, then editor of the Irish Times and Mr. Maurice Gubbins, editor of the Evening Echo, amongst others requiring those persons to attend before the District Court in Cork on the 26 ^th January. 2011, to show cause why they should not be subject to process of execution including imprisonment for contempt of court in

4 (a) publishing material tending to identify children the subject of proceedings under the Child Care Act 1991 as amended; and

5 (b) publishing material tending to disclose the result of proceedings under the Child Care Act 1991 as amended.

6 3. Judge O'Leary heard evidence and received submissions over a number of days and thereafter delivered a written judgment on the 25 ^th February, 2011. He found that Mr. Vaughan, Ms. Kennedy and Mr. Gubbins had shown cause why they should not be subject to process of execution for publishing material tending to identify children, the subject of proceedings under the Child Care Act. However, he found that the three editors had not shown cause why they should not be subject to process of execution for publishing material tending to disclose the results of proceedings under the Child Care Act 1991, as amended and were therefore in breach of the in camera rule governing such proceedings and were guilty of contempt of court. Having convicted the three newspaper editors of contempt of court, he imposed a fine €1,000 on each, allowing them three months to pay and made provision for five days imprisonment in default of payment.

7 4. In the case stated Judge O'Leary seeks the opinion of the High Court on the following questions:-

8 (a) Whether tie was correct in law in determining that mens rea (in the sense of a deliberate intention to publish in violation of the in camera rule or being recklessly indifferent as to whether such publication, violated the in camera rule) was not required on the part of the notice parties/appellants before he found that a contempt of court had occurred as alleged?

9 (b) Whether he was correct in law in determining that the provisions of the European Convention on Human Rights and the Irish legislation implementing it, did not require:

10 (i) that the notice parties/appellants be permitted to publish the reports complained of, and

11 (ii) if they did so require, that he was required or entitled to over-rule existing...