McG -v- Judge Yvonne Murphy and Ors
High Court
Judgment was delivered by Mr Justice Michael Hanna on December 9th, 2008.
Judgment
Once a charge of incest has been laid, under the Criminal Law (Incest Proceedings) Act 1995 neither the victim nor the accused can be named by the media, even if the accused is convicted and the victim wants him named.
Background
The case arose from an order made by Judge Yvonne Murphy, following the conviction of a man for the sexual assault of his sister, that none of the parties could be named by the media. The applicant in this case is the victim, who suffered the assaults by her older brother many years ago.
The brother was tried in January 2003 on five charges of sexual assault and two of incest, which related to two alleged instances of penetrative sex against his sister. He pleaded guilty to one indecent assault count and was found guilty by the jury on another. The jury disagreed on three indecent assault charges and acquitted him on the incest charges.
He received a sentence of 12 months, suspended for two years, and his name was placed on the sex offenders register. The prosecuting counsel then drew the 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 and victim in incest proceedings.
Following the sentence, the victim wrote to the Minister for Justice and the DPP seeking to have the anonymity lifted.
Eventually, in 2005, she contacted the One in Four organisation, which wrote on her behalf to the State authorities.
Later that year she instructed solicitors, who entered into correspondence with the trial judge seeking to have the order lifted. The judge refused to modify it.
The applicant then sought leave to bring judicial review proceedings, seeking to have the order lifted. She also sought an extension of time as the time was running out.
The brother joined the proceedings as a notice party, opposing the lifting of the anonymity order.
There was some confusion about the nature and terms of the order made by the Circuit Court judge prohibiting the reporting of the case by the media, but the parties agreed on the terms of an order for the sake of clarity.
There was also some confusion about the position taken by the Director of Public Prosecutions, where two conflicting letters from his office were sent to the applicant’s solicitors.
However, the DPP was represented throughout the High Court proceedings as amicus curiae. The brother adopted many of the arguments of the DPP.
The applicant argued that section 3 (1) of the 1995 Act did not give rise to the blanket ban on publication, as had been urged on the judge by counsel for the prosecution. She said that the notice party had pleaded guilty to one charge of indecent assault and had been found guilty of another.
She referred to the judgment of Kearns J in Independent Star -v- O’Connor Ors [2002], which referred to the identification of the complainant and the convicted person in a sexual offence case.
The respondents argued that once an incest charge was laid, all publication was illegal and there could be no exceptions. The notice party argued in addition that he had been sentenced in the context of the 1995 provisions, and that it would do him an profound injustice were he to be identified now, as many years had elapsed and he had moved on with his life, had married and had children.
Decision
Mr Justice Hanna quoted section 3 of the Criminal Law (Incest Proceedings) Act, which states: “After a person is charged with an offence under the Act of 1908, no matter likely to lead members of the public to identify that person as the person charged or to identify any other person in relation to whom the offence is alleged to have been committed shall be published in a written publication available to the public or broadcast.”
It goes on to lay down the penalties for breach of the section, including a fine of €10,000 or three years in prison, or both.
“In my view, section 3(1) of the Act of 1995 is declaratory of the will of the Oireachtas to the effect that once the charge of incest is made, nothing likely to identify the actors involved in such alleged offence shall be published, either in written form or broadcast form.
“It admits of no exceptions. Even conviction of a guilty party does not alter the situation. This contrasts with the position under section 8 (1) (b) of the Criminal Law (Rape) Act 1981.”
He pointed out that this Act permitted the identification of the accused after conviction, while the identity of the victim was protected.
“Of course, under the Act of 1995, nothing changes upon conviction,” Mr Justice Hanna said. “No publication ban is lifted. It is the Act of charging alone which triggers the publication ban.”
This was the law and there was actually no need for a court order prohibiting publication, he said. The trial judge drew the attention of the media to the provisions of the Act, which was entirely appropriate and in accordance with law. Even if he were to quash the order, the position of the parties would not change one jot.
For the sake of completeness he also dealt with the issue of delay. Given all the efforts made by the applicant to confront and resolve the perceived injustice she had suffered, it would be unfair and unjust to penalise her on time, he said.
If he thought she was entitled to the relief he would have extended the time. “I am not of that view and regretfully I must refuse it,” he said.
The full judgment is on www.courts.ie
Jack Fitzgerald SC and John A Nolan BL, instructed by Pearse Hehigan Co, for the applicant; Sunniva McDonagh SC (then BL), instructed by the Chief Prosecution Solicitor, for the DPP; John P Gallagher BL, instructed by Garret Sheehan Co Solicitor, for the notice party.