Court of Appeal: High Court reporting restriction overturned

Andrew McKeown BL

About this case:

• Citation:
  [2020] IECA 321
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Background

In 2013, the complainant reported to gardaí that during the course of a particular summer, she was raped on four separate occasions by DH. She was not entirely sure what year it was; it transpired that it was 1987, when she was nine years old and DH was aged 17.

DH was tried in May 2016. The jury in that trial was discharged. He was tried again in November 2016. Because of what was perceived as a discrepancy between what the complainant had said in her evidence and what she had told the Eastern Health Board at one point, the trial judge stayed the four rape charges pending further investigation. The DPP appealed to the Supreme Court which upheld the appeal. A third trial took place in March 2019 and DH was convicted on all counts. He was sentenced to seven years’ imprisonment on each of the rape counts and terms of five years’ imprisonment in respect of the two indecent assault counts, all to run concurrently.

An order as to anonymity was made by the trial judge without prior discussion. The complainant was not aware of the possibility of seeking to waive her anonymity, and shortly after informed gardaí that she wished to waive her right to anonymity. That was communicated to the DPP who sought ex parte the lifting of the reporting restrictions. The court directed that DH be put on notice. It came before the court again in November 2019.

The Criminal Law (Rape) Act 1981 s.8 (as amended by the Criminal Law (Rape) (Amendment) Act 1990) deals with the anonymity of the accused. Counsel for DH argued that the Oireachtas could not have implicitly created a right of a defendant to waive his or her anonymity by virtue of the provisions of s.8(5) given that such a right had already been expressly given by virtue of the provisions of s.8(2). It was further submitted as a matter of interpretation that the provisions of s.7(4) implicitly could not create such a right for a complainant given the wording of that subsection is effectively identical to s.8(5).

The judge referred to Ord.28 r.11 RSC, the Slip Rule. The judge said that this was not the position in this case, as no error was made on the face of the order. The judge then referred to “in the breast of the Court” jurisprudence, including Ms Justice Iseult O’Malley’s decision in Richards & Byrne v Judge James O’Donoghue & The DPP [2017] 2 IR 157. He distinguished the application, stating that it had not been made within the day of the original order, nor the next day. He said the original decision was made in accordance with the wishes of the DPP and the complainant, and that there was a subsequent change of mind. The judge then made reference to the fact that s.7(4) states “if at a trial”. He said that the Court could not conclude that it was still “at trial” in circumstances where the verdict of the jury had been delivered and sentence had been pronounced in May 2019. The judge ruled that he was functus officio and that he was not, therefore, in a position to vary his order.

The DPP appealed to the Court of Appeal.

Court of Appeal

The DPP argued that there was no necessity at all for the trial judge to make a formal order in relation to reporting restrictions in respect of either the complainant or the accused, and that this was superfluous. Such an order was not in accordance with the wish of the complainant. The DPP argued that in the absence of any familial relationship, the publication of DH’s name would not tend to identify the complainant.

The Director submitted that the High Court judge erred in taking the view that he was functus officio when asked to vary his order six days later. She submitted that the judge fell into error in adopting an overly restrictive view of the window of time within which an application to lift reporting restrictions had to be made. She says that this was a case where six days was a “reasonable time” (as per Ms Justice O’Malley’s dicta in Richards & Byrne) within which to make an application.

Mr Justice George Birmingham, president of the Court of Appeal, said that the manner in which matters proceeded in May 2019 was “less than ideal”. He said that he could “readily acknowledge that a judge who had presided over a lengthy trial, as had happened here, may well have insights into the attitude of the parties and those with an involvement in the case which are not available to an appellate court. Nonetheless, there was little, if any, information available to suggest that the Director or complainant had ever addressed the issue.” Mr Justice Birmingham said that that it would have been appropriate for the trial judge to invite submissions on the issue, and to ensure that the views of the injured party had been canvassed.

The DPP’s appeal was allowed. The reference in the court order to an ongoing restriction on DH’s identification was expunged. The president did not believe that the trial judge was correct to hold that he was functus officio. He found that the approach taken by the court below was a “very restrictive one; indeed, an unduly restrictive one.” He stated that reporting restriction orders are by their nature continuing orders, and the circumstances may change.

As noted in Independent Newspapers v Anderson [2006] 3 IR 34, the press, as parties significantly affected, have a right to apply for a variation of the order that has impacted upon them and judges, who have made the order, have jurisdiction to vary. In this case, the application was made by the DPP at the behest of the injured party. “An overly-strict view of when a judge is functus officio could deny an injured party the right to be heard on an issue of very major importance to them”.

The president said that Independent Newspapers (Ireland) Ltd v IA [2020] IECA 19 offers support to the view that the judge was not precluded from addressing the merits of the application that was made to him.

Conclusion

The appeal was allowed.