Victim wants convicted child rapist named but judge says he cannot change reporting restrictions

A case currently before the Court of Appeal could have implications on the reporting of rape cases in Donegal and around the country.

A ruling last year by a judge banning the publication of the name of a convicted child rapist, despite his victim wishing to waive her anonymity so he could be identified, has been appealed by the Director of Public Prosecutions (DPP).

The Court of Appeal heard on Friday that an order made by Mr Justice Michael White on May 17, 2019 following the conviction of a man for the rape of a neighbour’s child in the late 1980s, continued reporting restrictions in the case in order to the prevent the victim from being identified through publication of her attacker’s name.

The now 49-year-old male was convicted of four counts of rape and two counts of indecent assault on unknown dates between 1987 and 1989 in Co Wicklow following a jury trial at the Central Criminal Court last year.

The man, who had pleaded not guilty to all the charges, was sentenced to seven years in prison in May 2019.

The Court of Appeal heard that at the time of Mr Justice White’s order in May 2019 keeping reporting restrictions in place, the victim, who is now aged 42, was unaware that she was entitled to waive her anonymity in order to allow the man’s name to be published.

However, the judge refused to vary the order when counsel for the DPP raised the issue a week later.

At a hearing in November 2019, Mr Justice White explained he had made the ruling on the basis that he no longer had power to change the reporting restrictions as the application was being made after the conclusion of the trial.

Counsel for the DPP, Paul Murray SC, told the Court of Appeal that Mr Justice White had erred in making a “superfluous” order in May 2019 following the man’s conviction as the only circumstances to prevent him from being named would be to protect the identity of his victim.

He claimed the trial judge had been far too restrictive in his approach to when orders on altering reporting restrictions could be made.

Mr Murray described the judge’s order as “unnecessary, invalid and not in accordance with the legislation.”

The Criminal Law (Rape) Act 1981 allows publication of the name of a person convicted of rape, providing it does not identify the victim. However, it has become common practice that a person convicted of rape can also be named if their victim agrees to waive their anonymity

Mr Murray said it had always been the wish of the woman that both she and the accused would be named, although he conceded that counsel for the DPP had not raised the issue expressly with her in May 2019.

He questioned if there should be any time limit on seeking changes to reporting restrictions of a case.

For example, Mr Murray asked if a victim, who was too traumatised during the course of a trial to waive her anonymity but who later wished to change their mind to allow publication of the name of a rapist, would be prevented from ever challenging an order on reporting restrictions.

Counsel for the DPP also said Mr Justice White was incorrect to say he no longer had powers to vary his order on reporting restrictions following the conclusion of the trial based on court rulings in similar proceedings.

Opposing the appeal, counsel for the convicted man, Colman Fitzgerald SC, said there was nothing to prevent the DPP from raising the issue of reporting restrictions at the sentencing hearing but no application had been made at the time.

Mr Fitzgerald argued that the DPP should not be allowed to make arguments to the Court of Appeal that were not made directly to the Central Criminal Court – a point disputed by Mr Murray.

He also claimed the DPP was seeking to have “an untrammelled right” for a victim to have their name published which had not been provided for by legislation.

The president of the Court of Appeal, Mr Justice George Birmingham, presiding, with Ms Justice Isobel Kennedy and Ms Justice Úna Ní Raifearta