Independent Newspapers (Ireland) Ltd and Others v I.A.

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 16 February 2018
• Neutral Citation: [2018] IEHC 120
• Docket Number: [2015 No. 591 J.R.]
• Court: High Court
• Date: 16 February 2018

[2018] IEHC 120

THE HIGH COURT

McDermott J.

[2015 No. 591 J.R.]

BETWEEN

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, SUNDAY NEWSPAPERS LIMITED, IRISH EXAMINER LIMITED, LANDMARK DIGITAL LIMITED T/A BREAKINGNEWS.IE

AND

THE NATIONALIST AND LEINSTER TIMES LIMITED T/A THE KILDARE NATIONALIST

APPLICANTS

AND

I. A.

RESPONDENT

Constitution – Art. 34 of the Constitution – S. 93(1) of the Children Act 2001 – S. 8 of the Criminal Law (Rape) Act 1981 – Certiorari – Restricted publication – Continuation of order

Facts: The applicants sought an order of certiorari for quashing the decision of the Circuit Court for refusing to lift the reporting restrictions on the sentencing hearing which had been continued after the conviction of the respondent. The applicants also sought a declaration that there was no legal basis for an order restricting the publication of the matters beyond the hearing. The applicants contended that in accordance with the provisions of s. 8 of the Criminal Law (Rape) Act, 1981 as amended, they were free to publish the name of the respondent at the conclusion of the sentencing hearing as the respondent had been sentenced and was no longer a child. The respondent argued that the applicants had acted in gross carelessness and recklessness and in breach of the existing Court order. The respondent objected that the applicants were guilty of inordinate delay in seeking to challenge the impugned reporting restrictions in the Circuit Court and in subsequently issuing the judicial review proceedings. The respondent submitted that he had filed defamation proceedings against the applicants for publishing untrue statements and the present applicant was made to support the applicants' defence in those proceedings.

Mr. Justice McDermott refused to grant the reliefs sought by the applicants. The Court opined that it was open to the learned trial judge to consider the delay as unreasonable and not the subject of any acceptable explanation and it was also entitled to exercise discretion in refusing the application in relation to the continuation of order after the hearing. The Court noted that the applicants were using the present application for devising a strategy to defend the defamation proceedings filed by the respondent.

JUDGMENT of Mr. Justice McDermott delivered on the 16th day of February 2018

1 The issue in this case concerns the lawfulness of reporting restrictions imposed by the Circuit Court in respect of the identification of an accused who pleaded guilty to offences contrary to the Criminal Law (Rape) Amendment Act 1990 and the Criminal Law (Sexual Offences) Act 2006.

2 Leave to apply for judicial review was granted to the applicants on the 27th October, 2015 (Noonan J.) for an order of certiorari of a decision by Her Honour Judge Mary Ellen Ring (as she then was) on 31st July, 2015 whereby she refused to lift reporting restrictions on a sentencing hearing which had been continued on 21st July, 2014 and further continued on 31st October, 2014. A declaration was also sought that there was no basis in law to restrict the hearing of a criminal trial in public whether by restricting publication of the name or identity of the respondent or otherwise on the 31st October 2014. It should be noted that the continuation of the order of 21st July 2014 after 31st October 2014 was not specifically addressed by the court on that date nor was the court invited to do so.

3 The respondent was born on 11th February, 1994. On 21st October, 2011 when aged seventeen he appeared before the Dublin Children's Court charged with a number of sexual offences alleged to have been committed between 23rd February, 2010 and 25th March, 2010 when he was sixteen. He was sent forward for trial. On 24th February, 2014 he pleaded guilty to one charge of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and two counts of attempted defilement of a child contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006. The case was adjourned for sentence.

4 At the time he committed these offences the respondent had just turned sixteen years of age. The injured party was born on 13th April, 1995 and was therefore fourteen years and ten months at the time of the events. The respondent at all material times claimed that he believed that she was older because her mother had falsified her age for social welfare purposes. The accused maintained that the events had taken place on a fully consensual basis. In those circumstances proof was sought of the injured party's age which was only produced on the eve of the trial. At that stage the applicant entered guilty pleas on the basis that consent was impossible as a matter of law by reason of the girl's age. Thus both the injured party and the accused were minors at the time the events took place. The offences involved a group of friends of roughly the same age including the injured party and two other accused who were part of the same social circle as the respondent. The learned judge made a ruling that since lack of consent was not in law an element of the attempted defilement offences evidence suggesting lack of consent in relation to those charges was inadmissible. The court adjourned sentencing and sought the assistance of the Probation and Welfare Service which prepared reports for 31st October, 2014.

5 When initially charged before the Children's Court, the respondent, because he was a minor, was the subject of a statutory restriction on his identification as an accused person. In addition, because he was charged with a number of rape offences, as a matter of law unless convicted his identity could not be revealed in any report of the proceedings.

Legal Principles

6 Article 34 of the Constitution provides that:-

‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.’

7 Section 93(1) of the Children Act 2001 as substituted by s. 139 of the Criminal Justice Act 2006 provides:-

‘93.(1) In relation to proceedings before any court concerning a child—

(a) no report which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any such child shall be published or included in a broadcast or any other form of communication, and

(b) no still or moving picture of or including any such child or which is likely to lead to his or her identification shall be so published or included.’

Under s. 93(4) it is an offence to broadcast or communicate matters referred to in section 93(1). The offence is more particularly described by reference to s. 51(3)-(6): upon the publication of any such material in a newspaper or periodical, it's proprietor, editor or publisher shall all be guilty of an offence. Section 93(6) provides that the provisions of s. 93 will not affect other statutory provisions concerning the anonymity of an accused or the law related to contempt of court. A child for the purpose of the section is a person under the age of eighteen years (section 3).

8 Section 8 of the Criminal Law (Rape) Act 1981 insofar as it is relevant provides:-

‘(1) After a person is charged with a rape offence no matter likely to lead members of the public to identify him as the person against whom the charge is made shall be published in a written publication available to the public or be broadcast except—

(a) ….

(b) after he has been convicted of the offence.’

‘A rape offence’ is defined by s. 1(1) of the Act as ‘any of the following, namely, rape, attempted rape, aiding and abetting counselling and procuring rape or attempted rape and incitement to rape’. This definition was amended by s. 12 of the Criminal Law (Rape) (Amendment) Act 1990 which substituted the following definition for ‘a rape offence’:-

‘any of the following, namely, rape, attempted rape, burglary with intent to commit rape, aiding, abetting, counselling and procuring rape, attempted rape or burglary with intent to commit rape, and incitement to rape and, other than in sections 2(2) and 8 of this Act, rape under section 4, attempted rape under section 4, aiding, abetting, counselling and procuring rape under section 4 or attempted rape under section 4 and incitement to rape under section 4’.

The respondent was not convicted of any of these offences.

9 Under s. 6 of the Criminal Law (Sexual Offences) Act 2006 the definition of ‘rape offence’ was extended to include a defilement or attempted defilement offence under s. 3. Thus a person accused of an attempted defilement contrary to s. 3 has a right to anonymity under the terms of s. 8(1) of the 1981 Act as amended. Upon conviction that protection no longer applies. However, circumstances may arise in which it is appropriate to continue a restriction if to reveal the identity of the accused would also result in the identification of a complainant ( K.L. v. Independent Star [2011] 2 ILRM 272).

10 The protection of a complainant's anonymity is of somewhat wider application than that of an accused. It extends to offences which are categorised as ‘sexual assault offences’ which include any rape, aggravated sexual assault or sexual assault offence under s. 1 of the 1981 Act as substituted by s. 12 of the 1990 Act. This protection is extended to cover an offence of defilement or attempted defilement under s. 6(3) of the 2006 Act.

11 A person accused of sexual assault does not have the same right to anonymity when charged or during the course of a trial. However, it may be that it becomes necessary to ensure that an accused's anonymity is preserved in order to protect the right to anonymity of the complainant in such a case.

12 In the case of proceedings against a child s. 94 of the 2001 Act also provides for the exclusion of...