Independent Newspapers (Ireland) Ltd v I.A.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Murray
Judgment Date22 January 2020
Neutral Citation[2020] IECA 19
Docket NumberCourt of Appeal Record No. 2018/148,[C.A. No. 148 of 2018]
Date22 January 2020
BETWEEN
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
SUNDAY NEWSPAPERS LIMITED
IRISH EXAMINER LIMITED
LANDMARK DIGITAL LIMITED TRADING AS BREAKINGNEWS.IE AND
THE NATIONALIST AND LEINSTER TIMES LIMITED TRADING AS THE KILDARE NATIONALIST
APPLICANTS/APPELLANTS
- AND –
I.A.
RESPONDENT/RESPONDENT

[2020] IECA 19

Birmingham P.

Whelan J.

Murray J.

Court of Appeal Record No. 2018/148

THE COURT OF APPEAL

Judicial review – Declaratory relief – Reporting restrictions – Applicant seeking an order of certiorari quashing a decision of the Dublin Circuit Criminal Court – Whether there was no basis in law for an order restricting reporting of a sentencing hearing

Facts: The appellants, Independent Newspapers (Ireland) Ltd, Sunday Newspapers Ltd, Irish Examiner Ltd, Landmark Digital Ltd and the Nationalist and Leinster Times Ltd, sought an order of certiorari quashing a decision of Judge Ring made in the Dublin Circuit Criminal Court on 31st July 2015. On that date, the Court refused to accede to an application by the appellants to lift reporting restrictions in respect of a sentencing hearing which took place on 31st October 2014. The appellants also sought a declaration that there was no basis in law for an order restricting reporting of that hearing ‘insofar as same related to the Respondent whether by way of restricting publication of the name or identity of the Respondent or otherwise relating to the Respondent’. The High Court (McDermott J) refused both reliefs ([2018] IEHC 120). He held that the reporting restrictions had originally been lawfully imposed. He further held that there was no legal basis for extending the reporting restrictions beyond the 31st October 2014. McDermott J refused to grant relief by way of judicial review to the appellants on the bases that (a) the appellants had failed to comply with the time limits provided for in Order 84 Rule 21 RSC, (b) the Circuit Court judge was entitled in the exercise of her discretion to refuse to set aside the order and exercised that discretion properly, and (c) it was appropriate in the exercise of the discretion of the Court attending the grant or refusal of remedies by way of judicial review, to refuse that relief. The appellants had not appealed the finding of the High Court judge that there was a lawful basis for an order imposing reporting restrictions up to 31st October 2014. The respondent had not cross appealed against the finding that there was no lawful basis for the orders after that date. The Court of Appeal was accordingly solely concerned with the correctness of the High Court judge’s conclusions in respect of these three issues (a), (b) and (c).

Held by Murray J that the decision of the Circuit Court not to lift the reporting restrictions was based on the fact that other parties involved in the proceedings to which the reporting restrictions attached, were not advised of the application to lift those restrictions and were thus not in a position to make any representations as to why the order should not be lifted. Murray J held that, while the application to Judge Ring and thereafter to the Court of Appeal was presented on the basis that the appellants only sought orders lifting that restriction in relation to the respondent, Judge Ring was clearly concerned that the co-accused should nonetheless be afforded the opportunity to address the effect any such order might have on them. Murray J held that the appellants had not identified any basis on which it could be concluded that Judge Ring erred in reaching this conclusion; in particular, the appellants had not established that it would be possible to partially lift the order in the way suggested by them without potentially affecting the rights and interests of the co-accused, and without therefore engaging their rights to fair procedures. Murray J held that an order of certiorari of Judge Ring's decision could not issue, nor could the Court grant the declaratory relief claimed (a) because granting such relief would in this case in effect decide the issue which Judge Ring in a legally valid decision had refused to decide, and (b) because the declaratory relief itself would affect those parties.

Murray J held that the Court would make an order dismissing the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Murray delivered on the 22nd day of January 2020
I ISSUES AND BACKGROUND
1

In these proceedings the appellants seek an order of certiorari quashing a decision of Her Honour Judge Ring (as she then was) made in the Dublin Circuit Criminal Court on 31st July 2015. On that date, the Court refused to accede to an application by the appellants to lift reporting restrictions in respect of a sentencing hearing which took place on 31st October 2014. In their Statement of Grounds, as modified in the notice of motion issued following their application for leave to seek Judicial Review, the appellants also seek a declaration that there is no basis in law for an order restricting reporting of that hearing ‘insofar as same related to the Respondent whether by way of restricting publication of the name or identity of the Respondent or otherwise relating to the Respondent’. The High Court (McDermott J.) refused both reliefs ( [2018] IEHC 120). He held that the reporting restrictions had originally been lawfully imposed. He further held that there was no legal basis for extending the reporting restrictions beyond the 31st October 2014.

2

McDermott J. refused, however, to grant relief by way of Judicial Review to the appellants on the bases that (a) the appellants had failed to comply with the time limits provided for in Order 84 Rule 21 RSC, (b) the Circuit Court Judge was entitled in the exercise of her discretion to refuse to set aside the order and exercised that discretion properly, and (c) it was appropriate in the exercise of the discretion of the Court attending the grant or refusal of remedies by way of Judicial Review, to refuse that relief. The appellants have not appealed the finding of the High Court Judge that there was a lawful basis for an order imposing reporting restrictions up to 31st October 2014. The respondent has not cross appealed against the finding that there was no lawful basis for the orders after that date. This Court is accordingly solely concerned with the correctness of the High Court Judge's conclusions in respect of these three issues (a), (b) and (c).

3

On 21st October 2011, the respondent appeared before the Dublin Children's Court charged with a number of offences. He was charged with two co-accused. The events giving rise to the prosecution of all three accused concerned the same injured party. All accused and the injured party were part of the same social circle. The appellant was seventeen when charged, and his co-accused were of similar age. The offences were alleged to have been committed between 23rd February 2010 and 25th March 2010, when the respondent was sixteen. The injured party was fourteen years and ten months old at the time of the offences.

4

The case first came before the Dublin Circuit Court on 11th December 2012. Throughout 2013 there were various adjournments. A date for trial was fixed on 24th February 2014. By then, the respondent was twenty. On that date pleas were entered by him to one charge of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and two charges of attempted defilement of a child contrary to section 3 of the Criminal Law (Sexual Offences) Act 2006. The latter two charges were rape offences within the meaning of the Criminal Law (Rape) Amendment) Act 1990. The two co-accused also pleaded guilty to certain offences. Reporting restrictions in the case had been applied from the time the matter first came before the Children's Court and were thereafter continued by different judges in different courts throughout the currency of the case. They were continued by the Circuit Court on 24th February. On that date the case was adjourned for a sentencing hearing on 21st July 2014.

5

On 21st July 2014, the facts were opened to the Court including the various charges against each of the accused. Evidence, including victim impact evidence, was given in relation to the injured party. At the conclusion of that evidence, the Court sought probation reports in relation to the accused and asked the probation service to meet with the accused in relation to certain matters raised at the sentencing hearing. The matter was adjourned to 31 October 2014.

6

On 21st July, the trial Judge continued the order imposing reporting restrictions. The order made on that date was as follows:

“The Court having heard the evidence tendered and the submissions on behalf of the respective parties and on the further applications of counsel for the defence for an order continuing the reporting restrictions, the Court doth Order that the said matter be adjourned to Dublin Circuit Criminal Court sitting in Court 5 CCJ at 11:00 on the 31/10/2014 before Her Honour Judge Mary Ellen Ring for sentence and that reporting restrictions do continue.”

7

On 31st October 2014, the sentencing hearing proceeded. In respect of the respondent, the Court imposed a sentence of two years imprisonment, suspended for three years from that date. The trial judge did not revisit the order made on 21st July 2014 restricting reporting of the case. Neither the Director of Public Prosecutions, nor the representatives of the respondent or other accused mentioned the reporting restrictions to the Court. Nor was any representation made on behalf of the Press. It is common case that, in consequence, the order restricting reporting made on 21st July remained in force after that hearing.

8

Notwithstanding that the reporting restrictions imposed by the order of 21st July 2014 thus remained in force, on 31st October 2014 and 1st November 2014 various articles appeared in publications owned by the appellants...

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