High Court: Newspapers refused application for judicial review of order imposing reporting restrictions

About this case:

• Judgment:
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Finding that the 2014 order was lawfully made, but that there was no lawful basis for it to continue after the accused had been convicted and sentenced, Mr Justice Paul McDermott said that there had been no application to lift the reporting restrictions and therefore the articles which were published were in breach of a court order.

Mr Justice McDermott described the present application as a collateral attack on a previous order, made “well outside” the period provided for in the Rules of the Superior Courts.

Background

The offences occurred around March 2010 when IA had just turned 16, and the injured party was 14 and 10 months old. IA was charged before the Children’s District Court in October 2011 when he was 17. Mr Justice McDermott said that IA “at all material times claimed that he believed that she was older” and “maintained that the events had taken place on a fully consensual basis”. Justice McDermott said that the matter had been adjourned throughout 2013 to facilitate obtaining the injured party’s birth certificate, which was produced on the eve of the trial.

On the trial date in February 2014, IA entered pleas of guilty to sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 and attempted unlawful sexual intercourse with a minor or attempted “defilement” contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006. His two co-accused also pleaded guilty.

Mr Justice McDermott noted that consent was impossible as a matter of law by reason of the girl’s age.

In July 2014, the Court ordered that the matter be adjourned to Dublin Circuit Criminal Court in October 2014 for sentencing, and that the reporting restrictions continued. IA was sentenced to two years imprisonment suspended for three years.

Publications about the accused

In October and November 2014, various articles appeared in publications owned and operated by the applicants (Independent Newspapers (Ireland) Limited, Sunday Newspapers Limited, Irish Examiner Limited, Landmark Digital Limited T/A Breakingnews.ie and the Nationalist and Leinster Times Limited T/A the Kildare Nationalist) concerning IA’s conviction and sentence.

IA’s solicitors wrote to the applicants complaining that the publications breached the order restricting the identification of IA. The July 2014 order restricting publication had been continued until October 2014 and with no application having been made to lift the order, it continued to apply thereafter.

The applicant newspapers submitted that as of February 2014, IA was a convicted person and no longer entitled to the benefit of the protection of his identity under s. 8 of the Children Act 2001.

It is further submitted that he was clearly no longer entitled to any protection under s. 93 of the Children Act 2001 since he was now twenty years old.

The applicants state that each of them proceeded on the understanding that in accordance with the provisions of s. 8 of the Criminal Law (Rape) Act 1981 as amended, they were free to publish the name of the respondent at the conclusion of the sentencing hearing in October 2014; as he was now a convicted person who had been sentenced and was no longer a child.

Issues arising

Mr Justice McDermott outlined three issues for consideration:

Mr Justice McDermott was satisfied that there was no lawful basis upon which to make an order restricting the reporting of the proceedings or the identity of IA under s.93 of the Children Act 2001, or within the powers exercisable by a trial judge under Article 38.1 of the Constitution (Irish Times Ltd v Ireland 1 IR 359 and Independent Star Ltd v O’Connor 4 IR 166 considered).

Mr Justice McDermott also said that the order restricting publication made in July 2014, ought not to have been continued beyond the date of sentencing in October 2014. However, no application was made to lift this order, and it followed that at the time of the publications, each of the applicants was in breach of an order of the Circuit Court; notwithstanding that such an application “would probably have been granted”. Mr Justice McDermott explained that this alleged contempt could not be undone.

Mr Justice McDermott said that the framing of the present application for judicial review sought to attack previous orders by challenging the refusal to lift them in July 2015, thereby “collaterally attacking the previous orders but seeking to do so well outside” the period provided under Order 84, Rule 21(1) of the Rules of the Superior Courts.

In exercising the Court’s discretion in judicial review proceedings, Mr Justice McDermott said that he was entitled to consider the applicants’ behaviour. Satisfied that the application was brought to support the defence of defamation proceedings brought against them by IA, Mr Justice McDermott said that the applicants were “to a large extent responsible for the situation” in which they found themselves.

Emphasising that the case was of a very serious and sensitive nature for both the victim and IA who were both minors at the time the offences were committed, Mr Justice McDermott was of the opinion that the applicants’ reporting of the matter did not appear to have had appropriate regard for these sensitivities or for accuracy.