Category: Criminal Law

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?

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Censorship in the 1920s, still on the books?

The Radio 1 History Show recently had an interesting segment on the prosecution of a Waterford newspaper editor.

In the new Irish Free State, low levels of sexual immorality and sexual crime were viewed as two indicators of this nation’s health. The reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.

A prosecution brought against a newspaper editor in 1929 did much to establish this status quo. The editor in question was D.C. Boyd of the Waterford Standard. He had reported explicit details of a case in which a local business man was accused of raping a 13 year old girl.

You can listen here to Myles Dungan’s interview with Dr Tony Keating, who gave a lecture on the topic in Waterford.

Dungan says that “reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.” I was curious to learn how far that “beyond” stretched and what became of the offence Boyd was prosecuted with.

Section 14(1) of the Censorship of Publications Act 1929 provides:

It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:

(a) any indecent matter the publication of which would be calculated to injure public morals, or

(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.

Section 15 says that an offence is punishable by a fine of up to £500 and/or up to six months imprisonment (which could include hard labour). In light of current debates about ISP and website operator liability for online content, it is interesting to note that section 15 specifically provided that the liability for the offence extended to proprietors, editors, publishers and “master printers”.

So, when was it repealed? It wasn’t. Sections 14(1) and 15 remain on the books.

According to Keating, Boyd’s case was the first prosecution of this type and was described by the trial judge as being exactly the type of case the law was introduced to deal with. One can only hope that it remains in force due to oversight rather than principle.

Dr Keating says that the maximum fine of £500 in section 15 would, in today’s money, be £22,000 (I am assuming he was referring to sterling). The Fines Act 2010 means that the offence is now subject to a Class A fine, currently up to €5,000.

I’m not aware of any more recent prosecutions but in 1953 Joseph Blowick TD was asking the then Minister for Justice Gerald Boland whether he had submitted a newspaper report on the murder of a judge‘s daughter in Northern Ireland to the Attorney General with a view to having it prosecuted under section 15.

Surely the Minister will agree that the publication of the sordid details referred to in the particular paragraph should not go at least without protest from the Minister provided that he is not statutorily debarred from making a protest to the Censorship Board? In the interests of the clean journalism practised in this country, very laudably practised I must say, surely the Minister should not allow the publication of sordid details like these to pass.

The Minister informed Mr Blowick that his officials had considered the publication but did not believe it could have been calculated to injure public morals.

It is difficult to see how the prohibition on publication is compatible with the Constitution or the European Convention on Human Rights. Even if freedom of expression were not an issue, the prohibition itself refers to both “indecent matter” which would be defined quite differently today than in 1929. Another difficulty, as was the case with Mr Blowick’s complaint in 1953, would be in proving that the publication was “calculated to injure public morals”. It is a mystery how Mr Boyd was found to have done so in 1929.

Effect of driving convictions abroad

Questions often arise about the effect of road traffic convictions abroad, especially since the Irish and United Kingdom governments agreed to apply the European Convention on Driving Disqualifications early. A good deal of explanatory information is available online, but none appears to answer a particular, common question:

Q: if you are Irish and are disqualified from driving in Ireland, will that disqualification apply in the UK?

A: No, but you will have surrendered your Irish licence and will then require a new foreign licence to drive abroad.

European Convention on Driving Disqualifications

Driving licences are already harmonised at European Union level, so there is some degree of uniformity across the EU in relation to the requirements to obtain one. This does not extend to harmonising disqualifications.

The Convention itself only partly harmonises driving disqualifications. It says that:

drivers disqualified from driving in a Member State other than that of their normal residence ought not to escape the effects of such measure when present in a Member State other than that of the offence

So, if an Irish driver is on holidays in the UK and, while there, is convicted of a serious driving offence and disqualified from driving in the UK, that disqualification will be notified to the Irish authorities who can apply it in Ireland. There are circumstances in which the Irish authorities can refuse to recognise the disqualification.

However, the Convention does not provide that an Irish driver who is disqualified from driving by an Irish court will also be disqualified from driving in the UK.

In short, foreign disqualifications follow you home, but home disqualifications don’t follow you abroad.

Many countries (including Ireland and the UK) allow for the exchange of a foreign driving licence in return for a domestic one but a current foreign licence is required. If disqualified from driving in Ireland, the Irish licence will be surrendered and therefore not available for exchange in the UK, for example. Therefore you would have to comply with the requirements of the foreign country for obtaining a new licence. Most countries, like the UK, impose a residency requirement for applicants.

Types of disqualifications covered

The main offences covered by the Convention are:

  • reckless or dangerous driving;
  • hit-and-run driving;
  • driving while disqualified;
  • drunken driving and drug driving (including refusal to give a sample); and
  • speeding.

Status of Convention

The Convention will not apply to all the Member States that have signed it until it is ratified by all of them. However, Ireland and the United Kingdom have applied its provisions early between themselves.

Irish Law

The Convention was implemented into Irish law by section 9 of the Road Traffic Act 2002 (note that the text linked to has been amended, see here for changes or here for a restatement of the full Act). However, it did not take effect between Ireland and the UK until 2010. The Convention does not apply to Wales or Scotland.

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More on technicalities

From retired judge Mary Kotsonouris, in her recent book ‘Tis All Lies, Your Worship (Tales from the District Court):

‘He got off on a technicality.’ Why do we think that this excuses a badly prepared or presented case? The law is meant to protect us from tyranny, from the false accusation and the trumped-up charge. If it says I am guilty of drunken driving when I have consumed a defined amount of alcohol, within a defined time of driving a motor car, then it is up to the person who accuses me of the offence to prove that it was what I was doing. If he fails to make a connection between the time I was driving and the time the alcohol level was measured, then he has not proved his accusation. All this is written down; it is the law. It is neither advanced science nor legal devilry.

Another drink driving technicality bites the dust (for now)

Lion Intoxilyzer 6000A High Court decision delivered two weeks ago is yet another which reduces the scope for “technicality” defences to drunken driving prosecutions.

Back in January, I wrote about so-called technicality defences and quoted from the leading Irish textbook on drunken driving law by Mark de Blácam SC. He notes, as have many judges, that drunken driving prosecutions have generated an substantial volume of appeals and challenges. Retired judge Mary Kotsonouris wrote recently that the introduction of the breathalyser lead to an explosion in “technicality” defences, demonstrating the lengths people are willing to go to in order to stay on the road. These challenges are likely to continue with each change to the law, despite frequently failing.

de Blácam’s book was quoted in the case referred to above in which the defence hinged on the humidity of the room in which the breathalyser was operated. The guidelines for the machine state that the optimum operating conditions are a room temperature in the range of 15°C to 35°C and a humidity between 30 and 90 per cent. These conditions are not set out in the applicable legislation, but the test report generated by the machine (the section 17 certificate) records the temperature and humidity of the room at the time.

In this case, the room humidity was 26% and the prosecution was dismissed by the trial judge on the basis that the humidity of the room was below 30%. The prosecution stated a case to the High Court (a procedure by which the High Court is asked a series of questions in order to guide other courts and future prosecutions). One element to the case stated concerned the trial judge’s refusal to allow for an adjournment so that the prosecution could present evidence to establish that the low humidity level did not affect the test.

However, this is the key question for drink driving prosecutions:

was the trial judge correct as a matter of law in dismissing the case on the ground that the humidity level was 26%?

Somewhat surprisingly, the Director of Public Prosecutions does not seem (on the basis of the judgment) to have presented evidence as to whether or not a humidity level of 26% would affect the test. Instead, it seems to have relied on the presumption in the law that a section 17 certificate is sufficient evidence that the requirements of the legislation have been complied with.

Mr Justice Nicholas Kearns decided that the trial judge was not correct in dismissing the prosecution.

There is nothing on the face of the Section 17 certificate to suggest that the Intoxilyser was not working on the date in question. There is no requirement in either the legislation or in the regulations that the temperature and humidity be noted, much less that they be requirements for a conviction on the basis of the Section 17 certificate. No evidence was adduced by the accused to question the reliability of the Intoxilyser or the accuracy of the reading of 58 and there was no evidence before the trial court to rebut the presumption that the certificate was accurate.

So, while a temperature or humidity reading on a section 17 certificate which falls outside of the optimum ranges will still raise an eyebrow, evidence will now be required to show that the reading adversely affected the test in order for the defence to succeed.

Go to court!

As mentioned previously, most people unlucky enough to find themselves summonsed to court will find themselves before one of the State’s District Courts. If you get a summons, make sure to attend court on the date specified. Failure to do so, even when told the charge will be withdrawn, can sometimes have serious consequences.

A summons is essentially a written order requiring the attendance of an accused in court at a particular time. Despite common popular opinion, it is relatively rare to “get off on a technicality”by finding some irregularity in a summons. In general, minor errors don’t matter: the purpose of the document is to have you show up in court to answer the charge.

Sometimes, however, a driver might not have committed any offence but is convicted in absentia due to human or computer error. For example: a driver is stopped for a minor offence, such as driving while holding a mobile phone. (S)he receives a fixed charge penalty notice and pays the fine. On the day the driver was stopped, the Garda also asked to see the driver’s insurance certificate (even though a valid insurance disc was displayed on the windowscreen). The driver didn’t have this certificate in the car so the Garda asks him/her to nominate a local Garda station at which it will be produced within 10 days. A few days later, the driver visits that station and produces the certificate. Everything is in order.

Months later, the driver is served with a summons for driving without insurance and for failure to produce a driving certificate at a Garda station. The driver contacts the Garda concerned in protest and is told that there must have been an error of some nature but that everything will be fine on re-production of the certificate. The driver dutifully visits the station a second time, produces the insurance certificate and is told, again, that everything is in order. The Garda who orginally stopped the driver tells them that they are free to go and that there is no need to attend court as the summonses will be withdrawn.

Further weeks pass and the driver, flicking through the pages of their local newspapers, is astonished to read that they have been fined hundreds of euros and have been disqualified from driving. Or worse, they receive a notice of the fine and disqualification in the post.

At this point, the driver might be forgiven for feeling trapped in a Kafkaesque conundrum. (S)he will now have to apply to the District Court for permission to appeal the conviction to the Circuit Court and will have to pay a deposit (a recognisance) for the appeal. The driver will also generally have to bear his/her own costs (including solicitor costs) relating to the appeal. To add insult to injury, if more than two weeks have passed since the original conviction the driver will remain disqualified from driving until the appeal is complete.

You might think you should be entitled to re-visit the District Court judge and have the conviction undone. Not so: a case can only be re-listed before the District Court if the defendant did not receive the summons. The fact that a member of the Gardaí told the accused that there was no need to attend court does unserve the summons.

The moral of the story? If you have received a summons to go to court, make sure you go to court. Even if you have been told that the case will not go ahead or will be withdrawn, attend on the day of the court to ensure that this is done or, at least, have a solicitor or family member attend on your behalf.