Maintaining anonymity when charged with criminal offences.

Snickers Man · 29-11-2019 12:08am #1

I am not a legal expert, to put it mildly, but I have a generic question concerning the anonymity of a person charged in court with a serous criminal offence.

What are the circumstances or grounds under which an accused person can retain their anonymity and in which media outlets can be forbidden from naming them or giving any clue as to their identity?

I realise that in certain sex offences, the anonymity of the accused is maintained but I understand that is to protect the privacy of the alleged victim. I frequently, well occasionally, read or see about cases where the victim of a sexual assault waives their own right to anonymity specifically so that the convicted attacker can then be named.

Minors who are accused of serious offences also have their anonymity protected, as we saw in the recent case of Boys A and B who were convicted of murdering Anna Kriegel.

But in other cases where the identity of the victim is already well known to the public, how could anyone over the age of 18 charged with perpetrating such an offence remain anonymous to the reading or listening public? I mean in general terms; I don't need an answer which only pertains to a current high-profile case.

Thanks

hullaballoo · 29-11-2019 1:39am

There are a huge number of factors in play atm wrt anonymity and reporting restrictions of criminal cases.

The problem is that previously, where public commentary was restricted to reading a physical newspaper and then perhaps discussing the story with mates in an impermanent conversation, there was little risk of prejudicing the accused who is innocent until proven guilty.

With the public discourse taking place on permanent media and being more widespread, there is an issue with a lack of fairness to accused persons. This gives rise to a likelihood of a collapsed trial, which of course is in no one's interests.

I have noted this increase in frequency and the broadening of reporting restrictions with interest because there has to be a retaliation against the so-called "no-smoke-without-fire" types who will prejudge any matter before the criminal courts and assume (rather than presume) guilt even before any evidence has been heard.

I can see some reality to restrictions on reporting being made such that only in circumstances of a secure conviction will the defendant to any criminal matter be named.

But it is the users of platforms such as this who have forced the issue because of unbridled public and permanent commentary that in many cases serves no real, legitimate or useful purpose.

I hope I'm not mincing my words.

One eyed Jack · 29-11-2019 4:29am

Snickers Man wrote: »

I realise that in certain sex offences, the anonymity of the accused is maintained but I understand that is to protect the privacy of the alleged victim. I frequently, well occasionally, read or see about cases where the victim of a sexual assault waives their own right to anonymity specifically so that the convicted attacker can then be named.

I read an interesting point on that before actually, which is why just that struck me, as I thought if such a right existed, it presented something of a conflict between justice and anonymity. Turns out there is no such right -

Although the phrase “the victim waived their right to anonymity” is often seen in news reports, it is not entirely accurate. The Criminal Law (Rape) Act 1981 and its amendments grant no right to a victim to allow themselves be identified.

According to a document from the Law Reform Commission there are two reasons the law doesn’t include this provision. Firstly, it was thought that adding it could “sow confusion in the minds of complainants generally as to whether they could protect their identities in a rape prosecution”.

Secondly, it was thought that giving victims the option to go public might leave them open to “pressure or inducement to allow their identity to be revealed”.

Of course victims can, and often do, go public. A practice has arisen where a barrister for the DPP will tell the court at conviction that the victim wishes to “waive their right” and the judge consents.

Speaking from experience, Ms Doyle believes the decision shouldn’t be made by the judge.

“It’s a very personal choice,” she said. “I was quite annoyed and angered that I didn’t have the right to make the decision; it was put in someone else’s hands.”

Mr Gillane agrees that it shouldn’t be a decision for the court: “The odd feature of it is that it tends to be indicated in open court by counsel for the DPP. What has counsel for the DPP got to do with it?” he said. “Or indeed what has the court got to do with it? It’s just one of those practices that have grown up.”

Untangling the vexed question of anonymity in sex cases

Snickers Man wrote: »

But in other cases where the identity of the victim is already well known to the public, how could anyone over the age of 18 charged with perpetrating such an offence remain anonymous to the reading or listening public? I mean in general terms; I don't need an answer which only pertains to a current high-profile case.

Reporting restrictions, would seem to be the obvious answer I would have thought? Persons found to be in breach of the restrictions may be charged with contempt of court. I don’t know have the restrictions mentioned in this article actually been introduced, but I see no reason why they wouldn’t extend beyond a trial and remain in place permanently in order that the defendant(s) maintain their right to their good name -

New rules seeking to ensure that only bona-fide journalists and lawyers may report or tweet from court cases are very worrying, Solidarity-People Before Profit TD Paul Murphy has said.

The measures, announced at the weekend by Chief Justice Frank Clarke, come into effect next Monday, November 26th. They are seen as a direct response to commentary being made on live court cases – usually via social media and platforms such as YouTube – that have strayed beyond contemporaneous reporting.

Some of the comments made, and content purporting to be reportage produced during a trial over the 2014 Jobstown anti-water charges protest, was seen as particularly problematic.

Mr Murphy was one of a group of protesters acquitted for the alleged false imprisonment of former Labour Party leader Joan Burton and her assistant during the protest.

“In attempting to shore up the position of the mainstream media as the gatekeepers of information from the courts, it contravenes the administration of justice in public,” Mr Murphy said.

He added that he did not know if the changes were in direct response to the Jobstown trial but said he had been told Mr Justice Clarke had referenced the trial in a paper.

Restrictions on reporting of court cases ‘very worrying’

Paul Murphy isn’t the first person that springs to my mind when I think of a person’s right to their good name, but then it could be argued that my opinion of Paul Murphy is indicative of the need for reporting restrictions to remain in place following the outcome of a trial!

Snickers Man · 29-11-2019 4:31pm

The two answers so far are interesting from the point of view of discussing whether it is advisable for anonymity of both accusers and accused in some cases to be maintained, at least until somebody has been convicted.

But what I was really asking was: how can some accused people's anonymity be retained and not others? Is it solely a matter for the judge in each case? Are there guidelines or rules to control who gets mentioned and who does not?

Take the example of bail. As I understand it, an accused who is innocent until proven guilty always has a right to be freed on bail and the only grounds on which it cannot be granted are:
a) is the accused likely to abscond?
b) is the accused likely to intimidate witnesses?
c) is the accused likely to reoffend?

If the police can convince the judge that there is a likelihood that any one of those conditions might be met, then bail may be refused.

All I am asking is, is there a comparable set of guidelines governing in what cases an accused person's name can remain unreported, at least until such time as they are convicted?

This really is a generic question.

coylemj · 29-11-2019 5:58pm

Four men were recently charged with the abduction and assault of the Quinn director Kevin Lunney.

RTE and other media reported the court hearing in Virginia, Co. Cavan and published the names, ages and home addresses of three of the men who were charged.

But....

A fourth man faces the same charges, but cannot be named for legal reasons.

https://www.rte.ie/news/2019/1126/1095164-lunney-arrests-court/

The only time I've seen something simlar (some names reported, others not) was in cases where one or other of the accused was under age so the press could name the adults but not those who were under age and charged with the same offence(s).

Does anyone know on what basis (law or precedent) that the judge could impose a reporting restriction in respect of one of the accused?

GM228 · 30-11-2019 12:23pm

coylemj wrote: »

Four men were recently charged with the abduction and assault of the Quinn director Kevin Lunney.

RTE and other media reported the court hearing in Virginia, Co. Cavan and published the names, ages and home addresses of three of the men who were charged.

But....

A fourth man faces the same charges, but cannot be named for legal reasons.

https://www.rte.ie/news/2019/1126/1095164-lunney-arrests-court/

The only time I've seen something simlar (some names reported, others not) was in cases where one or other of the accused was under age so the press could name the adults but not those who were under age and charged with the same offence(s).

Does anyone know on what basis (law or precedent) that the judge could impose a reporting restriction in respect of one of the accused?

It's based on the principles of fair procedures, a judge can impose a reporting ban where it may interfere with or prejudice an accused person's right to a fair trial.

It was argued and settled in the High Court and Supreme Court in a number of cases through the1990s, the most notable being the Irish Times Ltd vs Ireland [1998] 1 I.R. 359 SC case which outlines the valid reasons for such a ban:-

Irish Times Ltd vs Ireland wrote:

before a judge presiding over a trial imposes a ban on reporting he must be satisfied of two things:-

(a) that there is a real risk of an unfair trial, if contemporaneous reporting is permitted, and

(b) that the damage which such improper reporting would cause could not be remedied by the trial judge either by appropriate directions to the jury or otherwise

It is long held at common law (and was for a while written in statute until 1967 I think) that a judge can impose a ban:-

Irish Times Ltd vs Ireland wrote:

Aside from such statutory provisions, however, it has been recognised for a long time that it may be necessary to postpone publication of evidence on occasion.

Irish Times Ltd vs Ireland wrote:

The public must be informed that the trial is proceeding but I believe that there is in existence a judicial discretion, if the judge is satisfied that interference is possible, that he may interfere with the immediate interests of the media. This is not a ban on reporting. This is not a ban on the public. This is a delay which cannot conceivably adversely affect the public interest and for the reasons stated I think it was quite justified

Essentially the SC held that an accused person right to a fair trial is higher than the medias right:-

Irish Times Ltd vs Ireland wrote:

The learned trial judge in balancing these two rights clearly found that the accused's right to a fair trial was paramount and ranked higher in the hierarchy of rights than the right of the media to contemporaneous reporting. In this conclusion, he was undoubtedly correct

Snickers Man · 01-12-2019 8:45pm

GM228 wrote: »

It's based on the principles of fair procedures, a judge can impose a reporting ban where it may interfere with or prejudice an accused person's right to a fair trial.......

Essentially the SC held that an accused person right to a fair trial is higher than the medias right:-

So it's entirely at the discretion of the judge and if he/she thinks that an accused person might not get a fair trial if the general public even knows that said person is being PUT on trial, he/she can impose a reporting ban???

No ban on reporting the existence of the trial itself, just the name of the person (or one of them) in the dock?

Is there not a danger of a Streisand effect here?

Maintaining anonymity when charged with criminal offences.

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