High Court of Ireland Decisions

Independent Star Ltd. v. O'Connor [2002] IEHC 109 (1 November 2002)

THE HIGH COURT

JUDICIAL REVIEW

2001 No 349 JR

BETWEEN

INDPENDENT STAR LIMITED

APPLICANT

AND

HIS HONOUR KIERAN O'CONNOR

RESPONDENT

AND

OC AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

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

1.      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.

2.      The present judicial review application involves a consideration of the meaning and effect of certain sections of the Criminal Law (Rape) Act, 1981 as 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.

3.      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."

4.      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.

5.      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.

(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."

6.      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.

7.      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.

8.      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.

9.      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 second named notice party is not now seeking that relief in the context of that application, it being more appropriate that the issue be determined in the present proceedings. In those other proceedings, the respondent has not elected to oppose same or to contest the quashing of his order of 26^th April 2001.

10.      Nor has the respondent judge appeared to oppose or contest the relief sought by the applicant in the present proceedings, and the Director has adopted a similar position. The only Statement of Opposition has been one filed on behalf of the first named notice party who has been convicted of sexual assault against the complainant.

11.      By his order dated 28^th May 2001, Kinlen J. gave leave to the applicant to apply for orders of certiorari to quash the decision of the respondent made on the 30^th of November 2000 to prohibit the publication of the name of the complainant, the name of the accused, the district in which both lived and the occupation of the accused, and in respect of his further decision made on the 1^st of December 2000 not to vary the said order made by him on the 30^th November 2000. The order does not detail the grounds set out in the applicant's Statement and simply states that the applicant shall have leave on the grounds that the Circuit Court judge "erred" in law in the orders he made in prohibiting the publication of the name of the complainant, the name of the accused, the district in which both lived and the occupation of the accused. This is the only "live" issue in the present proceedings and falls for determination only because the quashing of the order in question is opposed by OC, the first named notice party.

SUBMISSIONS

12.      The applicant's submission, which is supported by counsel for the Director, is threefold:-

(a) the respondent did not have jurisdiction to make the order which he did under the Criminal Law (Rape) Acts, as consolidated

(b) he also lacked jurisdiction, because he was functus officio at the time he made the said order

(c) alternatively, if the orders were made within jurisdiction, they were not supported by the reasons relied upon by the learned judge in making his order.

13.      Dealing with the last point first, the reasons offered by the respondent are contained at p. 38 of the transcript of proceedings on the 30^th November 2000, and may be characterised in the following terms:

(d) the respondent, having received various legal submissions, expressed the view that he had jurisdiction to make such an order as part of his jurisdictional control over a matter proceeding in his own court.

(e) the respondent stated his belief that, in the absence of such an order, females might be discouraged from coming forward to make complaints about sexual assault generally.

14.      On behalf of the applicant, Mr. Feeney submitted that any protection which an accused enjoyed under Section 8 of the Criminal Law (Rape) Acts disappeared on conviction, as was made clear by Section 8 (1)(b). From that moment onwards, Mr. Feeney submitted, the legal landscape was governed by Section 8, so that the trial judge was not called upon, nor had he any function in, making orders thereafter. If in publishing a report of the proceedings, a newspaper thereafter published anything which might tend to identify the complainant, the statute contained its own clear mechanisms for dealing with that situation. Insofar as OC tried to invoke Section 7(4), Mr. Feeney submitted he was doing so quite inappropriately as that statutory provision clearly related to the complainant only, and it was not for the perpetrator of a sexual offence to invoke the complainant's possible concerns, or indeed those of the respondent, in an attempt to prevent the publication of his own name. The clear policy of the particular subsection, he submitted, was to give the trial judge a discretion to allow publication of the complainant's name where, for example, a false or baseless allegation had been raised. The mere fact that an accused person had been acquitted did not automatically deprive a complainant of the protection conferred by the Section. The Section could not be construed as some form of statutory protection for an offender who had been convicted, following a plea of guilty, to charges of sexual assault.

15.      Mr. Feeney further submitted, that in the ordinary course of things, Article 34.1 of the Constitution, which provides that justice be administered in public, removed any judicial discretion to have proceedings heard other than in public save where expressly so provided by statute (In Re: R Ltd [1989] IR 126; Roe -v- BTSB & Ors [1996] 3 IR 67).

16.      Mr. Feeney further submitted that the learned judge had misinterpreted the effect of the decision of the Supreme Court in Irish Times Ltd -v- Ireland [1998] 1 IR 359, because while the Supreme Court recognised that some limitation on the exercise of the rights conferred by Article 34.1 could be imposed, the discretion only existed where the court was required to act to protect an accused's person constitutional right to a fair trial. Once the trial finished, that discretion disappeared. In precisely the same way, Mr. Feeney argued, the learned judge lacked jurisdiction because he was then functus officio and could not revisit a concluded matter.

17.      Finally, both reasons offered by the respondent for the making of his order failed the judicial review test under the principles identified in Associated Provincial Picturehouses Ltd -v- Wednesbury Corporation [1948] 1 KB 223, approved by the Supreme Court in The State (Keegan) -v- Stardust Victims Compensation Tribunal [1986] IR 624 and O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39. In relation to the first reason offered by the respondent, the same was clearly based on a misinterpretation of the Supreme Court decision in the Irish Times -v- Ireland case. The second reason offered by the respondent was a policy consideration which, though perhaps laudable in itself, could not constitute a proper reason for making the order complained of.

18.      Mr. Collins on behalf of the director, supported Mr. Feeney's submissions. He referred to the People -v- Cahill [1980] IR 8 as an authority for the proposition that the respondent was functus officio when making the order complained of in the present case.

19.      As Henchy J. had stated in that case (p. 11):-

"the inevitable conclusion would seem to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statute or under the rules) the trial judge is functus officio as far as the trial is concerned."

20.      On behalf of OC, Mr. Gageby submitted that Sections 7 and 8 of the Criminal Law (Rape) Act, 1981 as amended were for the benefit of the community and that no individual right was at stake. He pointed out that the sections do not include any provision which allows a complainant apply to the court to dispense with the statutory requirements of the sections.

21.      Secondly, the terminology of Section 7(4) clearly envisaged that the trial judge could make such appropriate order as he considered necessary when the trial was over. The final words of Section 7(4), that "a direction shall not be given in pursuance of this subsection by reason only of the outcome of the trial" must mean there is scope and lee-way for the trial judge, following the outcome of the trial, to make such directions as he deemed appropriate.

22.      In submissions to the respondent, the applicant had conceded that there was a risk that the complainant could be identified if the offender was identified, but claimed that the complainant was willing to be identified publicly. The respondent had clearly formed the view, and this was not contradicted by either the applicant or the Director, that publication of the offender's name, because it could lead to the identification of the complainant, was not in the interests of the complainant's welfare or in the public interest. The complainant was a minor at the time of the making of the order and, even if she had a right which she herself might waive, the respondent had a duty to act in her best interest if he formed the view that any publication might lead to her identification. These reasons and the material considered provided a proper basis for the order made.

23.      Mr. Gageby also submitted that as the matter was still 'in the breast of the court' there could be no question of the trial judge being functus officio at the time he made his order. The Act clearly intended that there should be jurisdiction to make such orders following the outcome of the trial.

CONCLUSION

24.      I should at the outset state that the complainant was born in September 1983 and was therefore a minor in November, 2000. It appears that immediately following the court order made on the 30^th November 2000, the complainant and her parents made contact with the applicant, expressing the view that they were anxious to have the prohibition on identification of the accused lifted, even if there was some risk that the complainant would thereby be identified. They saw this as important for her rehabilitation from the experience that she has suffered.

25.      Be that as it may, the court is at this point only concerned with the legality of the orders sought to be impugned.

26.      I propose to deal firstly with the functus officio argument. The respondent had made an order prohibiting any reporting whatsoever of the case on the 29^th of November 2000. This was the date upon which sentence was imposed.

27.      As Mr. Gageby points out, there is a logical inconsistency in the submission of the applicant on this aspect of the case. If he was functus officio on the 30^th November, was he not also functus officio on the 29^th, the order of that date prohibiting all reporting having been made following the imposition of sentence? The applicant's submission on this point was further weakened by reason of the fact that the applicant had applied to the respondent four months later on the 26^th of April 2001 for a further variation of his order.

28.      It is important to recognise that the functus officio point which Henchy J. was dealing with in the People -v- Cahill arose in the context of considering the compatibility of the particular sentence handed down with the right of appeal. In sentencing the accused to seven years imprisonment, the trial judge had directed that the court would "consider suspending the then balance of said sentence" if the accused were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime he had obeyed prison discipline and had shown a willingness to rehabilitate himself in society. The accused applied to the Court of Criminal Appeal for leave to appeal against the sentence imposed and the decision was a decision of that court. Henchy J. stated (at p. 11):-

"if the date of the imposition of this reviewable sentence were said to be 'the close of the trial', the sentenced man might be unable to plead at that stage that he should be allowed to appeal on the ground of the severity of the sentence for until the sentence is reviewed at the end of three years, it would be impossible to identify the term that will have to be served. On the other hand, if 'the close of the trial' were held to be the date three years hence when the sentence is to be reviewed, the sentenced man's right to seek the appeal would be postponed until then, and that would be palpably unfair and unjust. The inevitable conclusion would seem to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statue or under the Rules) the trial judge is functus officio as far as the trial is concerned."

29.      What is clear from the foregoing is that the trial judge cannot revisit the conviction or sentence. However, it has not been argued in the instant case that in requesting the trial judge to revisit the issue of anonymity that the variation of his order so as to identify the offender could in some way be argued to constitute some addition to his sentence in the form of the detrimental publicity or odium which might follow.

30.      The terminology of Section 7 (4) clearly envisages the making of an order by the trial judge following the conclusion of a trial, so he is clearly not functus officio at that stage for that purpose at least, even though conviction and sentence have been dealt with. The application to vary does not impact either on the sentence, or on the right of appeal. The application made to the court on the 30^th of November was made at a time while the matter was still, in the phrase adopted by Mr. Gageby "in the breast of the court", and for these various reasons, I do not believe the respondent was functus officio at that particular point.

31.      Insofar as jurisdiction is concerned, the fact that he has jurisdiction to make some order does not of course necessarily impute that he had jurisdiction to make the particular order which he did make.

32.      It seems to me clear that the very limited jurisdiction conferred by Section 7 exists exclusively with regard to the complainant, and not the accused. Any rights which the accused may have are dealt with by Section 8 which is quite explicit in removing the protection of his identity following a conviction. It goes without saying that careless or irresponsible reporting of the identity of the accused might, in certain circumstances, lead to identification of the complainant, but this is a matter regulated by the Act which provides, as already indicated, that any such publication shall constitute an offence and provides penalties in respect thereof. In short, the sanction operates by law and not as a result of any direction to be given by the court. Had the legislators wished to incorporate some special form of protection for a convicted offender, such as that argued for in the instant case, it is inconceivable that Section 8 (1) (b) should so manifestly be a provision which provides the exact opposite.

33.      On this aspect of the case, therefore, it seems to me that the trial judge has jurisdiction of a limited nature only, being one which is exercisable only with regard to a complainant.

34.      I also accept Mr. Feeney's submission in relation to the import of the decision in Irish Times -v- Ireland that, in the absence of some statutory provision permitting non-disclosure, the court only has a discretion to limit the rights conferred by Article 34.1 where a failure to do so would interfere with an accused's right to a fair trial. In other words, the exception, if such it may be called, is there to protect the trial process itself. The need for it evaporates once the trial has been concluded.

35.      In that case, Hamilton C.J. stated as follows at p. 383-4:-

The public nature of the administration of justice and the right of the wider public to be informed by the media of what is taking place are matters of the greatest importance.

Such a right is not however an absolute one.

In the first instance it can be limited, as provided in Article 34.1 itself, in such special and limited cases as may be prescribed by law.

O'Flaherty J. in the judgment which he is about to deliver, instances a number of such cases which have been prescribed by law and there is no need for me, in the course of his judgment, to repeat them.

It was submitted on behalf of the applicants that in the absence of "an express statutory provision" as that phrase was used by Walsh J. in In Re: R Ltd [1989] IR 126, no general discretion lies in the court to order a trial otherwise than in the public and that as there was no statutory enactment relevant to the instant case, there was no discretion or jurisdiction vested in the learned Circuit Court judge to make an order that should be tried otherwise than in public.

The effect of such submission, if valid, would be to remove from a trial judge the jurisdiction and discretion which he enjoyed at common law to prohibit reports of proceedings when he considered such reporting would frustrate or render impractical the administration of justice and to vest in the Oireachtas solely the jurisdiction of deciding what aspects of the administration of justice would be conducted in private.

A literal interpretation of Article 34.1 of the Constitution, if construed alone, would appear to support the submission made on behalf of the applicants but Article 34.1 must be construed in the light of the other provisions of the Constitution and in particular Article 38.1 which provides that:-

"No person shall be tried on any criminal charge save in due course of law".

36.      He went on to state (at p. 385):-

"I am satisfied that the exercise of the rights conferred by Article 34.1 can be limited, not only by Acts of the Oireachtas, but also by the courts where it is necessary in order to protect an accused's person's right to a fair trial" (emphasis added).

37.      Quite clearly the orders made by the respondent herein did not in any way go to the accused's right to a fair trial, and accordingly there can be no question of the exception having any relevance in the instant case.

38.      It equally follows that, insofar as the respondent relied upon the exception as a ground for making his said order, the reason was not one which could sustain the order made. I also accept Mr. Feeney's submission in relation to the second reason offered by the learned judge, that is to say that any consideration as to whether complainants might be more or less inclined to come forward to make complaints if he lifted the prohibition, are clearly matters of policy which, as such, cannot as reasons sustain the making of the order of the 30^th of November.

39.      Mr. Gageby has argued that the respondent acted throughout from the best possible motives, that he had the welfare of the complainant very much in mind and had material before him which provided ample justification for making the order in question. While I accept fully that the learned judge did act from the best possible motives, his stated reasons for making the order in question were those which I have found incapable of sustaining the order which he in fact did make.

40.      Accordingly I find in favour of the applicant and will quash the orders of the respondent made on the 30^th of November 2000 and the 1^st day of December 2000.