A number of media organisations have lost their appeal over an order preventing identification of a man who admitted sexual assault and attempted defilement of a child when he was aged 16 and she was 15.
The restrictions order remains in force for now but media organisations can apply to have it lifted, the Court of Appeal ruled.
When aged 17, the male and two co-accused of similar age were charged before Dublin Children’s Court with offences in 2010 relating to the same girl, Mr Justice Brian Murray noted when giving the three judge Court of Appeal judgment. All four were part of the same social circle. The case first came before Dublin Circuit Criminal Court in 2012 and was adjourned a few times.
A trial date was fixed for February 2014 when, aged 20, the man pleaded guilty to one charge of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 19909 and two charges of attempted defilement of a child contrary to section 3 of the Criminal Law (Sexual Offences) Act 2006. The co-accused also pleaded guilty to certain offences.
Reporting restrictions were applied from when the matter first came before the Children’s Court and were continued during the case, including in July 2014 and October 2014. At an October 2014 sentencing hearing before the circuit court, the man was sentenced to two years imprisonment, suspended in its entirety for three years.
Neither the media nor the DPP mentioned the reporting restrictions at that hearing, with the effect the restrictions order remained in force, Mr Justice Murray said. The man was subsequently identified in articles in publications owned by Independent Newspapers (Ireland) Ltd, Sunday Newspapers Ltd, Irish Examiner Ltd, Landmark Digital Ltd, trading as BreakingNews.ie, and the Nationalist and Leinster Times, trading as the Kildare Nationalist. Legal proceedings were issued on his behalf against those organisations alleging defamation and breach of right to privacy, with publication of his name in breach of court orders pleaded as an aggravating factor. The claims are denied. Circuit Court Judge Mary Ellen Ring in July 2015 refused the media groups’ bid to have the reporting restrictions lifted. Their counsel said the complainant had indicated she had no objection to being identified.
The media groups sought a High Court judicial review over Judge Ring’s refusal. They told the High Court they had believed they were entitled to publish having regard to section 8 of the Criminal Law (Rape) Act 1981, which provides an accused can be identified on conviction unless publication might identify the complainant.
The High Court found the restrictions orders of July and October 2014 were lawful but there was no legal basis to continue them after October 31st, 2014. However, it refused the media groups any relief for reasons including its findings of delay by them in challenging the restrictions order.
They appealed to the Court of Appeal.
In the Court of Appeal judgment, Mr Justice Murray said Judge Ring’s primary reason for continuing the restrictions was because lifting them would impact on the two co-accused who were not on notice of the media application. The media groups said their application related only to the order against the respondent.
Some of the grounds relied on by the High Court for refusing relief, including delay in seeking to have the restriction order lifted, did not properly arise in the context of the discretion to refuse judicial review, he held.
However, the appellants had to establish that identifying the man would not impact on the interests of the co-accused and they had not done so, he held.
There was also limited evidence about the current views of the complainant about her identification and there would have to be more evidence in that regard.
The appellants had not established Judge Ring erred in law with the effect the restrictions order, which the High Court had held to have no lawful basis after October 2014, remains in force, he said.
This “unattractive outcome” was a necessary consequence because the right to fair procedures of the co-accused is “as integral an aspect of the administration of justice” as the requirement that justice be administered in public.
The appellants, should they wish, can apply to the Circuit Court to have the reporting restrictions lifted in whatever form they feel appropriate, on notice to affected parties and ensuring whatever order is sought is cognisant of the rights of the complainant, he said.
In an “exceptional” case, an order could be refused if it were established an affected person would suffer “clear and identified” prejudice, he added.
