The member of the Garda charged with possession of child pornography can be named, the District Court has ruled. Garda Darach Kennedy was charged on June 4th last when the President of the District Court, Judge Peter Smithwick, imposed an order prohibiting the naming of the accused.
Last week the DPP sought to have this order lifted when the case came before Judge David Anderson for the serving of the book of evidence, but this was refused. The case was adjourned because the book of evidence was not ready.
Judge Smithwick gave his ruling yesterday following submissions in court by counsel for the Irish Independent, which were joined by lawyers for The Irish Times, RTÉ and other media.
Mr Eoin McCullough, for the applicants, told the court that the seminal case on the issue of reporting court cases was The Irish Times and Ireland, where the Supreme Court ruled that there could be no restrictions on the reporting of court cases except in two circumstances. These were where the law either obliged or allowed the court to impose such restrictions, as it did in family law cases, or where it was necessary to protect the integrity of the trial process, and there was a real risk of an unfair trial. Neither of these circumstances applied at the moment and there was no provision for such restrictions in the Child Trafficking and Pornography Act.
He said that if the effect on the accused of the publication of his name before the conclusion of the trial were to be taken into account, the same would have to apply in other criminal cases, such as those involving murder and manslaughter, for example.
This was an unavoidable effect of article 34.1 of the Constitution, which states that justice be administered in public.
Judge Smithwick asked the solicitor present for the DPP why the DPP had consented to the order when it was imposed. She said that this was not in accordance with the standing instructions from the DPP in relation to such cases.
Mr Martin Moran, for the accused, said the solicitor acting for the accused when the order was imposed had consented to it and it was granted because it was in the interests of the accused in receiving a fair trial. "Your order was final," he said. "If there is a challenge to your order, this is not the place for it. When is an order final and when is it not?"
Judge Smithwick said the order was not final, in that it could be overturned on appeal to the Circuit Court or by judicial review. He added that it was preferable if there were consistent instructions from the DPP. The DPP's solicitor said that the DPP's instructions had not been conveyed to the court.
"I am constrained by the case- law opened to me today," Judge Smithwick said. "This was not raised by the DPP. I must vacate my order of June 4th and not impose any reporting restrictions. The reporting must be fair and accurate and not prejudice a fair trial."
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