The President of the District Court yesterday vacated an earlier order that restricted reporting the name of a member of the Garda Síochána charged with possession of child pornography.
Judge Peter Smithwick ruled that Garda Darach Kennedy, who was charged on June 4th, could be identified after submissions were made in court by counsel for the Irish Independent, joined by The Irish Times, RTE and other media organisations. In the interests of the administration of justice in public, this decision is welcome.
However, it does not solve the vexed question of identifying those accused of offences under the Child Trafficking and Pornography Act. The decision of the President of the District Court has moral force in this court, but it is not binding in the Circuit or the High Court. As cases arising out of the Garda crack-down on child pornography have come up around the State, court rulings on naming the accused have been, to date, inconsistent. This is unfair to those who have been named, and undermines the credibility of the justice system.
The law on the naming of those accused of sex offences is aimed at the protection of the victim. Therefore those accused of rape or child abuse are normally not named, unless there are special circumstances or where this is sought by the victim. But child pornography cases are different, in that the victims cannot be identified anyway. There is no provision in the Child Trafficking and Pornography Act for restricting reporting on these cases.
It is often argued that identifying the accused in such a case is itself very damaging. The accused should enjoy the presumption of innocence until convicted. There have been disturbing reports of attacks on people so accused, even before conviction, which must be condemned. However, people accused of other crimes, like assault, murder and manslaughter, receive no protection from publicity. Their families also suffer embarrassment and perhaps ostracism as a result. But, as counsel for the media pointed out in court yesterday, this is the price to be paid for the constitutional principle that justice is administered in public.
It could be argued that, because of the exceptionally high feelings generated by allegations of sexual crimes against children, the accused should not be identified until convicted. If this argument is put forward and debated, and it is held to outweigh the constitutional imperative that justice be administered in public, then it is a matter for the Oireachtas to change the law.
But for now the law is clear. Unless there is a likelihood that the accused will not receive a fair trial, there is no reason why certain individuals facing such charges should not be identified while others are. It is unfair and inconsistent that this happens. There is need for clarity on the matter. This is unlikely to come about until the Director of Public Prosecutions or one of the media organisations seeks a ruling from the High Court in a judicial review.