Irish Times breach of court order was ‘innocent and inadvertent’, judge rules

A High Court judge has accepted the identification of a child with special needs in an Irish Times article was an “innocent and inadvertent” breach of a court order preventing such identification.

Mr Justice Anthony Barr accepted the Irish Times was unaware of the non-identification order until July 5th, two days after the article was published on July 3rd last.

Contempt of court is only available when there is some evidence the alleged contemnor either knew, or should have known, of the making of the relevant order and that was not established in this case, he said.

He was satisfied the publication arose due to a “genuine mistake” on the part of Irish Times Education Editor, Carl O’Brien, who wrote the article, and Irish Times Editor Paul O’Neill.

He accepted the article was a “well researched and thought out” article designed to highlight the plight of the child’s mother in trying to find adequate facilities for the child.

Notwithstanding there was contempt, he was satisfied it was “innocent and inadvertent” and he struck out an application to punish The Irish Times.

He also refused an application by the child’s former school, which brought the contempt proceedings, for its costs with regard to the application against The Irish Times.

Challenging behaviour

The school initiated proceedings last February against the Secretary General of the Department of Education and an appeals committee over the latter’s reversal of the school’s decision to expel the child over challenging behaviour and an order was made preventing the child being identified.

In a judgment last month, where the parties were anonymised, Mr Justice Barr found in favour of the school.

On July 3rd, the Irish Times article was published. Having learned on July 5th of the non-identification order, the Irish Times took steps to remove online versions of it.

Last week, the school initiated its contempt application.

On Monday, the Department of Education took a neutral position on the contempt matter while Alan Brady BL, for the child’s parents, accepted the identification was a “good faith mistake”.

Feichín McDonagh SC, for the school, read affidavits from Mr O’Neill and Mr O’Brien in which both accepted there was a breach of the no-identification order and apologised sincerely and unreservedly for a “serious and significant mistake”.

Both denied any deliberate breach of the order and said they were unaware of its existence before the article’s publication.

Mr O’Brien said in his affidavit he was contacted by the child’s mother last month who informed him of the court judgment in favour of the school and that her child had no school place the following September.

He accessed the court’s judgment, did not realise there was a no-identification order and assumed, because the court had apparently ruled on the issue and the mother was willing to be interviewed, there was no constraint on publication.

Mr McDonagh said “we all make mistakes” but this was a “very serious” one. It was hard to understand how the article passed legal scrutiny or how someone reading the court’s anonymised judgment would not appreciate there was a reporting restriction.

He submitted this was a criminal contempt, noting the law provides a contempt can attract a possible penalty of a fine up to €25,000 or three years imprisonment.

John Maher BL, for Mr O’Neill and Mr O’Brien, said Mr O’Brien set out in good faith to write a serious piece of journalism and it was unfortunate he did not detect from his research, or contact with the child’s parents and a disability rights advocate, the order was in place.

Plight of the family

The Irish Times took the matter very seriously and did not want to prolong it. Its chief concern is the plight of the family involved and it is also aware of the difficulties the school faces, he said. It is engaged in serious responsible journalism and asked the court to “weigh that in the mix”.

In his ruling, Mr Justice Barr said the non-identification order was very properly put in place to protect a very vulnerable minor. It was with considerable surprise he saw The Irish Times article but, on reading it, he suspected the parents had approached Mr O’Brien and noted the article set out the mother’s views about the difficulty accessing what she regarded as adequate care and services for her child.

He was satisfied neither Mr O’Brien nor Mr O’Neill were aware before publication of the non-identification order and only learned of it as a result of communications from a solicitor for the school. The parents had said they presumed the journalist was aware of the court order.

While not blaming the school for not responding to contacts from Mr O’Brien, if it had, it might have assisted in preventing this regrettable mistake.

The court could perhaps ask why Mr O’Brien, an experienced journalist, did not seek to wonder whether, having seen an anonymised judgment, there was a court order but the judge accepted his evidence he was unaware of it and there was no intention by him, Mr O’Neill or the owners of The Irish Times to deliberately breach the order.