A woman who was indecently assaulted by her brother when she was a child has lost her High Court challenge to laws preventing the identification of persons charged with incest.
The woman had brought proceedings aimed at quashing a judge's order preventing the media naming her brother, who was acquitted of incest charges but convicted of indecent assault.
In his reserved judgment today, Mr Justice Michael Hanna said, while he had sympathy for the woman, he must dismiss her claim because the law providing anonymity for perpetrators and victims of incest allowed for no exceptions.
The case arose after the woman's brother was convicted in 1993 of one count of indecent assault on his sister on a date unknown between 1977 and 1981. He admitted one offence which occurred when his sister was aged between eight and nine years and he was 16 but denied other charges of incest and indecent assault.
A jury at Dublin Circuit Criminal Court acquitted him of the incest charges and disagreed on the other indecent assault charges. Judge Yvonne Murphy imposed a 12 month sentence for the indecent assault, which was suspended.
At the end of the brother's trial in February 2003, during which the media were prohibited from reporting the names of the parties, Judge Murphy granted an application by the DPP for the anonymity of both the accused and victim to be preserved.
When the sister said she wished to waive her right to anonymity, Judge Murphy said the law prevented identification and there was nothing she, the judge, could do about that.
In judicial review proceedings against Judge Murphy and the DPP, to which her brother was later joined as a notice party, the woman had claimed there was a clear and fundamental distinction between the conviction for indecent assault and offences under the Incest Act 1908 and she was entitled to waive her anonymity.
In his decision, Mr Justice Hanna said Section 3 of the Criminal Law (Incest Proceedings) Act, which provided for anonymity for perpetrators and victims of incest, allowed for no exceptions.
He said there was no point in setting aside Judge Murphy's ruling on identification as the law clearly prohibited the publication of the name of somebody charged or convicted of incest. In making her order, Judge Murphy merely reaffirmed to the media in the court room what the law said on identification.
He said the legislation banning publication of anything to identify either party was activated as soon as a charge of incest was brought, regardless of a conviction or acquittal. To interpret it otherwise would fly in the face of the legislation and effectively amend it, he added.
The judge rejected arguments by the DPP that the woman was responsible for any delay in bringing her case.
During the High Court hearing, lawyers for the brother had argued he is a father of three young school going children and the reopening of the matter after trial would cause him to suffer hardship and prejudice. Any publication of the matter would lead to great public opprobrium and impose a much greater punishment on him than that contemplated by Judge Murphy, it was submitted.
