This media outlet, like every other media outlet based in Ireland, would find itself before a Judge on contempt of court charges were we to name the man who appeared before Dublin District Court yesterday, facing accusations that he attempted to abduct a five-year-old child from an apartment block on the north side of Dublin over the weekend.
On their own, reporting restrictions around criminal cases are not unusual, and are often put in place for good reasons. For example, where the victim of a sex crime might be identified through their relationship with the accused person, a court will generally bar the name of either party from being reported. Beyond court restrictions, it is generally accepted (at least here at Gript) that we will not name somebody who has been merely arrested and will only identify people who have been formally charged – because not every arrest leads to charges. This, people might recall, was the case with a Romanian man who was initially arrested and questioned at length about the murder of Aisling Murphy, but who turned out to be entirely innocent of that crime.
There are other reporting restrictions, court imposed or self-imposed as well – we would generally not report here at Gript, for example, if somebody facing a jury trial on serious charges had a previous conviction or convictions for similar offences, because to do so might prejudice a fair trial. (A person is tried for the crime they are charged with and must be proved to have committed it. A juror taking previous convictions into account is not focused on the evidence before them.)
What is unusual in this case is not necessarily the fact that the accused person has not been named, but the rationale for not naming him advanced by the Gardai in court yesterday morning. As Orla O’Donnell for the taxpayer-funded broadcaster reported:
Judge Gerard Jones said it was a very serious matter and remanded the accused in custody until Wednesday at Cloverhill District Court.
He imposed reporting restrictions on the identity of the accused following an application by Garda McDermott based on “the current climate in the country”.
There is, let us be clear, none of the usual circumstances here which would prohibit the naming of the accused: By all accounts, his alleged victim was unknown to him, so there is no risk of the child being identified by proxy. The accused person has been remanded in custody, so there is also little risk of him being accosted or attacked by vigilantes on the streets. Instead, we are told, he cannot be named because of the “current climate in the country”.
Translated, in effect, this is a statement that the court does not accept that the public can be trusted to know his identity because of how the public might react to his identity.
From this statement, most people will likely intuit – correctly or incorrectly – that the accused person is foreign born, since “the climate in the country” is a very poorly shaded reference to the ongoing politics of immigration.
For the purposes of what follows, we will assume that intuition to be correct.
In the first instance, this is clearly and unambiguously a case of political interference by the courts. If the courts start making decisions – as they were urged to do in this instance – based on how the climate in the country might be affected by those decisions, then they are no longer impartial judicial actors, but political actors. Voters are entitled to make their decisions based on information that is in the public interest, and in the public domain. If the courts are deciding to withhold information from the public domain purely on the basis that it might impact the climate in the country, then they are making a political decision that – regardless of whom is in Government – would appear designed to shield the Government from political headwinds that might arise on foot of that information becoming known.
Second, there is the matter of sheer fairness and equal treatment by the courts of the people who appear before it. Imagine a scenario where the accused person in this case were somebody whom the applying Garda did not think would “impact the political climate in the country” were their name to be made public. That person, we can assume, charged with the very same offence, would be named.
If we assume – as we must, I think – that being named as an accused attempted child abductor has serious negative impacts on a person’s social standing and employability post the judicial process, then this is very clearly a case of unequal treatment. Or what we might, in the manner of the British, call “two tier Justice”.
Third, there is a question to be asked about the role of the Gardai here. While the order not to name the accused person came from the bench, the application not to name him on the basis of the climate in the country came from the Gardai.
Now, in fairness, the Gardai are tasked – as a core part of their mission – with the maintenance of public order. No doubt, if challenged on it, the Gardai would say that decisions like this relate to that mission, and the maintenance of said order. They would argue that in their judgment, the naming of this person might undermine public order and that this is, therefore, a statutory part of their mission. I asked them about that, and received the usual perfect straight-batted forward-defensive shot that the Press Office plays to every awkward question: “Each application to the Courts made by An Garda Síochána is on a case-by-case based on the specific circumstances of an individual incident and the relevant law(s). Such applications are subject to challenge and are a matter for the Courts to decide upon”, was all the Press Office would give me.
However, the problem with that stance is that there is basically no limiting principle with a case by case approach. Where does the Gardai’s duty to public order come in relation to its duty to treat people equally? If one offender would be named, and another not, on the basis of a threat to public order, then it is actually clearly advantageous to be the kind of person whose identity might trigger such a threat. Equality before the law has gone out the window.