Judge dismisses appeal against gagging order on media over sex offender

The Court of Appeal has described as “unattractive” the fact that an unlawful order gagging the media from naming a convicted sex offender remains in force.

Mr Justice Brian Murray made the comment in a lengthy judgement on an unsuccessful appeal by a number of media firms against an order preventing the identification of a man who admitted sexual assault and attempted defilement of a child.

The man was aged 16 when he committed the offences against the 14-year-old girl in February and March 2010. He and two co-accused of similar age first came to the Children's Court in 2011 when reporting restrictions were applied, Mr Murray stated.

A date for trial at Dublin Circuit Criminal Court was set for February 24, 2014. On that date the man pleaded guilty to the offences and the co-accused also entered pleas to related charges.

The defendants were no longer juveniles at this point. At a subsequent sentence hearing, lawyers for the DPP told Judge Mary Ellen Ring that reporting restrictions remained in place. The court also heard that the victim wished to waive her anonymity.

In October 2014 Judge Ring sentenced the man to two years imprisonment which she fully suspended. Neither the media, the DPP or the court addressed the reporting restrictions at this point.

The case was reported on in national and regional publications owned by 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.

The man was identified in these reports and solicitors issued legal proceedings on his behalf alleging defamation and breach of right to privacy, citing the publication of his name allegedly in breach of court orders as an aggravating factor. The claims are denied.

Judge Mary Ellen Ring refused a subsequent application by the media to lift the gagging order on the case. The court heard again that the woman had no issue being identified.

The press organisations then sought a Judicial Review over Judge Ring's refusal. They told the High Court that “[they] had believed at the time of publication that they were entitled to publish having regard to section 8 of the Criminal Law (Rape) Act 1981”.

The High Court found the restrictions orders of July and October 2014 were lawful but there was no lawful basis for Judge Ring to continue them after October 31st, 2014. In his judgement this week Justice Murray noted “that decision has not been appealed”.

He held that Justice Paul McDermott was incorrect in his judicial review judgement when he questioned that media groups' wish to challenge the reporting restrictions was linked to a defence of civil proceedings.

Justice Murray stated that “the refusal of an order quashing an otherwise unlawful reporting restriction on the ground of the appellant's motive would not be consistent with the constitutional imperative”.

He noted established case law that “the principles of open justice and the publicity of proceedings do not depend on whether they are pursued for high principle or for commercial considerations or worse”.

Justice Murray also held that Justice McDermott's reliance on the delay in the media's move to have the restriction order lifted was not a proper basis for refusing relief in the context where “the underlying decision was made without jurisdiction”.

“Delay should not defeat an application of this kind in the absence of a strong prejudice caused by that delay,” he held.

Justice Murray held that the order in issue in this case has “very constitutional consequences”.

“It has the effect of imposing an ongoing reporting restriction on proceedings which, in accordance with the Constitution, must be heard in public.

“That provision exists not for the sole benefit of the media but also for that of the public which has a right to both receive information regarding such proceedings and to the benefit of the check on judicial power it entails”.

But Justice Murray stated that the court was now being asked to make an order “potentially impacting on the interests of the two co-accused who were never on notice of the appeal and therefore not in a position to make any representation.

“This conclusion has the consequence that an order imposing reporting restrictions which the High Court has held to have no lawful basis, remains in force. This is an unattractive outcome.

“The right of the co-accused to fair procedures is as integral an aspect of the administration of justice as the requirement that justice be administered in public.”

Dismissing the appeal Justice Murray noted that it now open to the media firms to apply to the Circuit Court to have the reporting restrictions lifted “on notice to all potentially affected parties”, ensuring any order is cognisant of the rights of the complainant.