L.McG. v Judge Yvonne Murphy & DPP

JudgeMr. Justice Hanna
Judgment Date09 December 2008
Neutral Citation[2008] IEHC 378
CourtHigh Court
Date09 December 2008

[2008] IEHC 378


[No. 858J.R./2006]
McG (L) v Judge Murphy & Ors








Administration of justice

Incest - Anonymity - Order prohibiting publication of identities of parties - Application by victim to have anonymity lifted - Whether blanket ban on publication provided by statute - Whether statute allowed for exceptions - Contention that removal of anonymity would do injustice to perpetrator - Lapsing of time - Whether anonymity taken into account at sentencing stage - Penalties - Intention of Oireachtas - Triggering of ban by act of charging - Absence of temporal limit - Regulation of ban by operation of law - Whether necessity for order prohibiting publication - Whether useful purpose to be served by quashing of order - Delay - Extension of time - Activity of applicant - Prejudice - Independent Star v O'Connor [2002] 4 IR 166 distinguished; Barry v Fitzpatrick [1996] 1 ILRM 512 considered - Criminal Law (Incest Proceedings) Act 1995 (No 12), s 3 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave refused (2006/858JR - Hanna J - 9/12/2008) [2008] IEHC 378

McG(L) v Judge Murphy

Facts: The applicant, who was the victim of indecent assault perpetrated upon her by the notice party, who was her brother, sought by way of judicial review, an order of certiorari quashing the order of the trial judge prohibiting the reporting by the media of the names of the applicant and the notice party herein. The applicant also sought an order extending the time for the making of such an application. The notice party had also been charged with incest but was acquitted by the jury. The trial judge made the prohibition order after her attention was brought to the provisions of s. 3(1) of the Criminal Law (Incest Proceedings) Act 1995. Following the verdict in the criminal proceedings, the applicant wrote to the Minister for Justice and the Director of Public Prosecutions seeking to lift the anonymity attaching to herself and the notice party.

Held by Hanna J. in refusing the application: That s. 3(1) of the 1995 Act was declaratory of the will of the Oireachtas to the effect that once the charge of incest was made, nothing likely to identify the parties involved in such alleged offence could be published. It did not permit any exceptions and conviction of a guilty party did not alter the situation like it did in relation to rape offences under s. 8(1)(b) of the Criminal Law (Rape) Act, 1981. Consequently, the ban on publication was not regulated by order of the court, but rather by operation of law. Therefore, no useful purpose would have been served by quashing the order made by the trial judge as the ban would still have operated pursuant to s. 3 of the Act of 1995. Finally, if the applicant was entitled to the relief sought herein, it would have been just and fair to grant an extension of time having regard to the circumstances in this case.

Reporter: L.O’S.


JUDGMENT delivered by Mr. Justice Hanna on the 9th] day of December 2008


The applicant in this case was a victim of sexual assault perpetrated upon her by the notice party many years ago. The notice party stood trial on the 27 th January, 2003. He faced seven charges. Five of those charges related to indecent assault contrary to common law provided in s. 6 of the Criminal Law Amendment Act 1935. The notice party faced two further charges of incest contrary to s. 1 of the Punishment of Incest Act 1908, as amended by s. 12 of the Criminal Law Amendment Act 1935, s. 12 of the Criminal Justice Act 1993 and s. 5 of the Criminal Law (Incest Proceedings) Act 1995.


Thus, the notice party faced five counts alleging indecent assault and two alleging incest. The charges involving incest involved allegations of penetrative sexual intercourse. He pleaded guilty to one indecent assault count and was found guilty by the jury on one other such charge. In sentencing the first named respondent, the learned trial judge observed that the guilty finding was in respect of an omnibus charge which seemed to cover the period material to the notice party's guilty plea. The jury disagreed on three charges of indecent assault in respect of which the State have entered a nolle prosequi.


The jury acquitted the notice party on the incest charges. The notice party received a suspended sentence of twelve months, suspended for a period of two years on his own bond to keep the peace in the sum of €200. In addition, the notice party's name was placed on the Sex Offenders Register.


Following upon the sentence, the prosecuting counsel drew the learned trial judge's attention to the provisions of s. 3(1) of the Criminal Law (Incest Proceedings) Act 1995, which provides for anonymity both for the alleged perpetrator of an act of incest and the victim in terms of publication. I will set out the section hereafter in detail.


The learned trial judge, it is asserted by the applicant, then proceeded to make an order prohibiting the reporting of the case by the media.


In one of a couple of peculiar twists which this case took after it opened before me, it transpired that there were two different forms of order, a fact which only came to light during the course of the hearing. Indeed, when the matter first opened before me, Mr. Fitzgerald S.C., on behalf of the applicant, was relying essentially on the transcript of the proceedings which undoubtedly did refer to a prohibition on reporting the names of the parties as provided for in the Incest Act. Shortly prior to the case beginning, a form of order was produced which made no reference to any restriction on the reporting. This gave rise to an adjournment since the order, on its face, as then constituted, was not amenable to the relief sought by the applicant. Subsequently, another order was produced which does refer to a prohibition on reporting of the case by the media. How two orders came into being has never been made clear to me. However, for the sake of clarity all parties settled on the order certified on the 24 th October, 2003, as being as near to the mark as we were likely to get even though the actual title of the order bears the wrong date.


The other twist, I should observe, arose from a letter that was sent prior to the last occasion on which we met dated 22 nd July, 2008, in which the Chief Prosecution Solicitor writing to the solicitors on behalf of the applicant stated by letter dated 22 nd July, 2008, sent at 14.25 per fax as follows:-

"Dear Sirs,

I am instructed to inform you that in light of what has now transpired in this case the Director will not be objecting to the reliefs sought when the case resumes on Thursday."


Hot foot from the same author came a letter bearing time line same date 17.20 the following:-

"Dear Sirs,

I refer to my fax this afternoon informing you that the Director will not be objecting to the reliefs sought when this case comes on for hearing on Thursday and I have to inform you that my instructions have changed and that the Director intends to continue to oppose your application. I apologise for the fact that you were misled by my first fax and for any inconvenience that this may cause you."


This placed Ms. McDonagh, BL acting on behalf of the respondents in something of a pickle. However, it was clear the first letter had been written by an appropriately instructed solicitor on behalf of the respondents withdrawing any opposition to the applicant's case. Absent the consent of the applicant, I took the view that unless there had been some unfortunate oversight or ghastly mistake or some unauthorised person had sent out an erroneous fax that the respondent's solicitor could not resile from the first letter. No such reasons were offered and the respondent was therefore bound by it.


In a sense this did not greatly affect matters as the notice party maintained his opposition to the reliefs sought and adopted the respondent's arguments as part of his case. Further, although technically entitled to pack up and leave, Ms. McDonagh accepted my invitation to remain in the capacity of amicus curiae and to offer such assistance as she could to the court.


At this juncture, it is important to acknowledge the role of the applicant in this. She has been the victim of a sexual assault perpetrated upon her by the notice party, her older brother. I did not receive viva voce evidence from her during the course of the hearing. However, it is evident from reading the papers, that she was grievously affected by the crime visited upon her.


After the verdict, and I do not mean this in any pejorative sense, the plaintiff engaged in a campaign involving writing to various parties, including the Minister for Justice and the Director of Public Prosecutions. Her aim was to lift the anonymity which attached both to herself and to the notice party. The intensity of her feelings on this issue is readily apparent, from reading the correspondence.


In time, her efforts led her to the One in Four organisation which concerns itself, inter alia, with victims of inter-familial sexual abuse. In 2005, they corresponded with State authorities on her behalf. Subsequently, in late 2005, she instructed solicitors, Messrs Pearse Mehigan and Co. To this point, the applicant had neither copy transcript nor copy order reflecting what had happened in court in 2003 following upon the sentence at which, of course, she had no personal professional representative. Copious further correspondence and applications to the learned trial judge followed. The primary objective was to effect the...

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