Independent Star Ltd v O'Connor

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 01 November 2002
• Neutral Citation: [2002] IEHC 109
• Court: High Court
• Docket Number: [2001 No.
• Date: 01 November 2002

[2002] IEHC 109

THE HIGH COURT

2001 No 349 JR

INDEPENDENT STAR LTD v. O'CONNOR & C (O) & DPP

JUDICIAL REVIEW

BETWEEN

INDPENDENT STAR LIMITED

APPLICANT

AND

HIS HONOUR KIERAN O'CONNOR

RESPONDENT

AND

OC AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S7

CRIMINAL LAW (RAPE) (AMDT) ACT 1990

CRIMINAL LAW (RAPE) ACT 1981 S7(6)

CRIMINAL LAW (RAPE) ACT 1981 S7(1)

CRIMINAL LAW (RAPE) ACT 1981 S8

CRIMINAL LAW (RAPE) ACT 1981 S8(1)

CRIMINAL LAW (RAPE) ACT 1981 S8(5)

CRIMINAL LAW (RAPE) ACT 1981 S8(1)(B)

CRIMINAL LAW (RAPE) ACT 1981 S7(4)

R LTD, RE 1989 IR 126

ROE V BTSB & ORS 1996 3 IR 67

IRISH TIMES V MURPHY 1998 1 IR 359 1997 2 ILRM 541

CONSTITUTION ART 34.1

ASSOCIATED PROVINCIAL PICTUREHOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

DPP, PEOPLE V CAHILL 1980 IR 8

Synopsis:

CRIMINAL LAW

Sexual offence

Judicial review - Jurisdiction - Certiorari - Circumstances in which judge may, following conviction of a sex offender, direct prohibition of name of the offender - Whether judge lacked jurisdiction - Whether orders supported by adequate reasons - Criminal Law (Rape) Act, 1981 as amended, sections. 7, 8 - Article 34.1 Bunreacht na hÉireann (2001/349JR - Kearns J - 1/11/02)

Independent Star Ltd v O'Connor - [2002] 4 IR 166

Facts: On 29 November 2000, OC was sentenced to 3 years imprisonment for sexual assaults. The sentence was suspended subject to certain conditions. The trial judge (respondent) had made an order prohibiting any reporting of the case and he continued this order in force on 29 November. On 30 November 2000, following submissions made on behalf of certain newspapers and RTE the respondent varied the order so as to prohibit the publication of the name and address of either OC or the complainant and of OC's occupation. On 1 December the applicant applied to the respondent to have OC's name published. The respondent refused principally on the ground that it would not be in the complainant's best interests. The applicant was granted leave to apply for judicial review by Kinlen J. to have the orders of the respondent quashed.

In April 2001 the respondent made an order providing the applicant with a copy of the medical report relating to the complainant. In May 2001 the DPP obtained leave from Kelly J. to bring judicial review proceedings to have this order quashed. The DPP also sought an order quashing the respondent's order of 30 November 2000 prohibiting the publication of the OC's name. The applications were listed for hearing together. The only statement of opposition to the application to quash the order of 30 November was filed by OC.

The applicant submitted (supported by counsel for the DPP) that the respondent did not have jurisdiction to make the order under the Criminal Law (Rape) Acts, that at the time of making the orders the respondent was functus officio and that the reasons for the order were inadequate. OC submitted that the terminology of the Act clearly envisaged that the trial judge could make such order as he considered necessary when the trial was over.

Held by Kearns J. in quashing the orders of the respondent made on 30 November 2000 and 1 December 2000 that while the respondent had jurisdiction to make some order that did not impute that he had jurisdiction to make the particular order which he made. The jurisdiction conferred by the Act was one which was exercisable only with regard to the complainant. The orders made by the respondent did not in any way go to the accused's right to a fair trial. While the respondent acted from the best possible motives, his stated reasons for making the order were incapable of sustaining the order which he did in fact make.

1 Mr. Justice Kearns delivered the 1st day of November, 2002.

2 This case concerns the circumstances in which a trial judge may or may not, following conviction of a sex offender, direct prohibition of publication of the name of the offender.

3 The present judicial review application involves a consideration of the meaning and effect of certain sections of the Criminal Law (Rape) Act, 1981as amended and extended by the Criminal Law (Rape) (Amendment) Act, 1990. It is also concerned with general and specific issues arising from certain orders made by his Honour Judge Kieran O'Connor at the conclusion of the trial of the first named notice party on the 29 ^th of November 2000.

4 Section 7 of the Criminal Law (Rape) Act, 1981, as amended by the 1990 Act, reads as follows in its consolidated form:-

"7 (1) subject to subsection (8)(a), after a person is charged with a sexual assault offence no matter likely to lead members of the public to identify a person as the complainant in relation to that charge shall be published in a written publication available to the public or be broadcast except as authorised by a direction given in pursuance of this section.

(4) if at a trial for a sexual assault offence the judge is satisfied that the effect of subsection (1) is to impose a substantial and unreasonable restriction on the reporting of proceedings of the trial and that it is in the public interest to remove or relax the restriction, he shall direct that that subsection shall not apply to such matter relating to the complainant as is specified in the direction; but a direction shall not be given in pursuance of this subsection by reason only of the outcome of the trial."

5 Subsection (6) of Section 7 provides that if any matter is published or broadcast in contravention of subsection (1) then, in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical shall be guilty of an offence.

6 In relation to the anonymity of an accused person, the following provisions are contained at Section 8:-

"(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) as authorised by a direction given in pursuance of this Section or by virtue of Section 7(8) (a) as applied by subsection (6) of this Section, or

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

7 (5) if at trial at which a person is charged with a rape offence the judge is satisfied that the effect of subsection (1) is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove or relax the restriction in respect of that person, the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to that person as is specified in the direction."

8 On the 29 ^th November 2000, OC, who had earlier pleaded guilty to several counts of sexual assault, was sentenced by the respondent to 3 years imprisonment, which sentence was suspended subject to certain conditions. The respondent had made an order prohibiting any reporting whatsoever of the case, and he continued that order in force on the 29 ^th November 2000. On 30 ^th November 2000, following submissions made on behalf of certain newspapers, including the applicant herein and Radio Teilifis Eireann, the national broadcasting network, the respondent varied the order so as to prohibit the publication of the name and address of either OC or of the complainant, and of OC's occupation. On December 1 ^st 2000, counsel on behalf of the applicant applied to the respondent to have OC's name published, despite the fact that this might lead to identification of the complainant. In this connection, counsel indicated that the complainant wished to have OC's identify revealed as this might aid in her recovery from the trauma resulting from the abuse she had suffered. The respondent refused this application, principally on the ground that it would not be in the complainant's best interests.

9 On 28 ^th May 2001, the applicant was granted leave by Kinlen J. to bring judicial review proceedings to seek to have quashed the orders made by the respondent herein on the 30 ^th November and 1 ^st December 2000.

10 On 26 ^th April, 2001, counsel for the applicant applied to the respondent for a copy of a medical report mentioned by the respondent when he made his ruling on 1 ^st December 2000. An order acceding to that application was made on that date. It recites that a copy of Dr. Ian Daly's report be given to the applicant's representatives on their undertaking that they would retain possession thereof. It was further ordered that only the applicant's counsel, solicitor and the doctor retained to examine the complainant on a confidential and professional basis would have sight of the report. It appears that the purpose of the exercise was, in effect, to obtain a second opinion as to whether it would be in the complainant's interest to have OC's identity revealed. A stay was placed on that order.

11 On 17 ^th May 2001 the Director obtained leave from Kelly J. in the High Court for leave to bring judicial review proceedings to have the respondent's order of 26 ^th April 2001 quashed by way of an order for certiorari. That application, entitled the High Court 2001 No 315 JR Director of Public Prosecutions -v- His Honour Judge Kieran O'Connor, Independent Star Limited, Notice Party is listed for hearing together with this application for judicial review. In the context of that application, the second named notice party was given leave to apply for an order of certiorari to quash the respondent's order of 30 ^th November 2000 prohibiting the publication of the first named notice party's name. Those proceedings came into being after leave was granted in the earlier application and the...