More on court reporting of indecent material

In response to my post about sections 14 and 15 of the Censorship of Publications Act 1929, TJ McIntyre points out that it would be interesting to test the restriction on court reporting against the decision of the Supreme Court in Irish Times v. Ireland [1998] 1 IR 359. That case concerned balancing the constitutional right of the public to know what happens in courts against the right of an accused to a fair trial but the judgment is highly significant to court reporting generally.

In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?

2 thoughts on “More on court reporting of indecent material

  1. Excellent post. Sections 14 and 15 of the 1929 Act are rather confusing when viewed from a modern perspective – while our natural instinct is to see them as protective of the victim, their location within the wider context of censorship legislation makes it clear that they are intended to be protective of “public morals” rather than privacy. Consequently, it is unhelpful to try to fit them in to the modern framework of victim anonymity, etc.

    In particular, the legislative history indicates that these sections were intended to close a perceived loophole whereby newspapers could report on salacious details of (in particular) matrimonial cases. The comments of the Minister for Justice are telling:

    “Part 3 deals with the judicial proceedings. That follows very closely upon an Act recently passed in England, and which, I understand, has been found to work very successfully. It prevents the publication in certain classes of cases of any evidence except what is contained in the judge’s charge. Of course, those largely deal with divorce cases. We have not got any of them in this country, and it is very unlikely that part would be called into use very much here, because it is very unlikely that papers in this country would have details of what occurred in England and which were not published in the English Press…

    Where there is an indecent case, say a case of indecent assault, or something of that kind, a newspaper may have given very full details of what took place. That penalty would then be liable to be inflicted upon the person who has published that unpleasant report.”

  2. TJ: That’s exactly it, s14 was obviously intended to protect us rather than the parties to the case. Dr Keating speaks in his interview of the practice among journalists at the time to use code words in articles, eg. “grave offence” etc.

    In relation to matrimonial cases, section 14(2) of the 1929 Act was repealed by the Family Law (Divorce) Act 1996.

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