Challenge brought against incest identification law

 

A woman who was indecently assaulted by her brother when she was a child has brought a High Court challenge to laws which prevent the identification of persons charged with incest.

The 39-year-old woman wants the court to lift a judge’s order which prevents the media naming her brother, who was acquitted of incest but convicted of indecent assault.

The case arose out of the conviction of the brother in 1993 of one count of indecent assault on his sister on a date unknown between between 1977 and 1981. He admitted the offence which occurred when his sister was aged between eight and nine years and he was 16.

However, he denied other charges of incest and indecent assault. A jury at the Dublin Circuit Criminal Court acquitted him of the incest charges and disagreed on other indecent assault charges.

Judge Yvonne Murphy imposed a 12 month sentence for the indecent assault, which was suspended for a two year period.

At the end of his 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.

Subsequently, the sister wrote to the President, the Taoiseach, the Minister for Justice and the DPP on several occasions saying she wanted her bother identified. She told them she believed the law had “taken away my voice”.

The court heard today that when her efforts to do this failed, she had in 2005 contacted the One-in-Four charity which provides support to people who have experienced sexual abuse. She later contacted a solicitor and initiated judicial review proceedings against Judge Murphy and the DPP, to which her brother was later joined as a notice party.

She claimed in those proceedings there is a clear and fundamental distinction between the conviction for indecent assault and offences under the Incest Act 1908 and that she is entitled to waive her anonymity.

Lawyers for the the DPP argued it was a matter of law that the brother could not be named and contended there was no discretion in the matter. Judge Murphy’s order was properly made under Section 3 of the Criminal Law (Incest Proceedings) Act 1995, the DPP said.

Yesterday, counsel for the brother told Mr Justice Michael Hanna the delay by the sister in making this application had seriously prejudiced his client.

Mr John P. Gallagher, for the brother, said he was now the father of three young school going children and the re-opening of this matter after five years would cause him to suffer hardship and prejudice.

Mr John M Fitzgerald SC, for the victim, said his client was not responsible for the delays in bringing the case as efforts to bring the matter to court had been affected by delays until this year in producing the actual written order of the judge’s (prohibition on publicity) decision.

Mr Justice Michael Hanna adjourned the case without setting a return date and said that if, in the interim, he needed to call the parties back for further submissions, he would do so.