A High Court judge yesterday upheld a claim by four media organisations that a District Court judge's order restraining publication of the name of a man charged with possession of child pornography images was unconstitutional.
However, Mr Justice Frank Clarke continued an earlier order restraining publication of the man's identity until 2pm tomorrow to allow the man's lawyers an opportunity to consider whether to appeal the decision to the Supreme Court.
The Irish Times, Independent Newspapers, Examiner Publications and RTÉ had an order made by Judge David Anderson in July 2003 prohibiting the naming of the man after he appeared on charges of possession of images of child pornography.
The judge, sitting at the District Court in Portlaoise, ruled that the man could not be named and nor could any information tending to identify him be published by the media. The man was charged in July 2003 with possessing child pornography images contrary to the Child Trafficking and Pornography Act 1998 and was remanded on continuing bail.
In October 2003 Judge Anderson said his ruling restraining publication of the man's identity was final and could not be varied.
The four media groups then went to the High Court seeking an order quashing the orders made by the judge on the grounds the orders breached Article 34.1 of the Constitution, which states that justice shall be administered in public.
In his judgment, Mr Justice Clarke said Article 34.1 applies in equal measure to civil and criminal proceedings and the requirement that justice be administered in public applied equally to any occasion when justice is being administered in the courts.
Judge Anderson had erred in taking the view that the hearing of July 4th, 2003, did not amount to part of the trial process, he ruled. Article 34.1 clearly applied to the hearing which went on before Judge Anderson on July 4th, 2003. No restrictions were permitted to be imposed on reporting of that hearing except in accordance with the proper exercise of a statutory jurisdiction or in accordance with principles set out by the Supreme Court in 1998 in a case involving The Irish Times.
The only restriction would apply to cases where the accused's right to a fair trial may require reporting restrictions, Mr Justice Clarke said. The undoubted effect which public knowledge of the existence of criminal proceedings against an individual may have on certain other rights was not a justification for departing from the clear constitutional imperative specified in Article 34.1, he held.
Judge Anderson was in error in appearing to have taken into account - in his ruling in October 2003 refusing to vary his restrictive orders - the fact that a public knowledge of the existence of the criminal charges against the accused man might affect his right to his good name (particularly if the proceedings never came to trial).
Mr Justice Clarke said Judge Anderson was incorrect in each of the reasons given by him in October 2003 for refusing to change the restrictions.
While there were undoubtedly a number of statutory restrictions on the reporting of the identity of accused persons (none of which are applicable on the facts of this case), it seemed clear all such restrictions are designed to protect the identity of the victims rather than being designed to ensure a fair trial.