Legal definition of media must include social media, says expert
Barrister Tom O’Malley’s comments follow report on handling of sex crimes
The report also recommends that suspects charged with sex crimes should not be named when their cases are before the courts unless and until they are convicted. File photograph: Matt Kavanagh/The Irish Times
The legal definition of media must be expanded to include social media to ensure the identities of people involved in sex crime cases are protected, the chairman of an expert group has said.
An expert group appointed by the government after the 2018 Belfast rape trial published a report on the justice system’s handling of sex crimes on Thursday.
The group, led by barrister and NUI Galway law lecturer Tom O’Malley, made a number of recommendations including that pretrial hearings be established, that sex crime victims should not be allocated their own legal representation during trials and that anonymity be extended to suspects of sexual assaults.
Speaking on RTÉ radio’s Today with Sarah McInerney show, Mr O’Malley also highlighted issues with what was being published on social media during high-profile trials.
“The law as it stands is very clear - it’s a criminal offence for print or broadcast media to publish information that they should not reveal such as the identities of the parties, it seems to me to be completely contradictory if social media were to have any exceptions from that,” Mr O’Malley said.
“What matters is not the medium through which the information is transmitted, it’s the fact that the information is transmitted to the public. We’re asking that the definitions of media (which date from legislation from 1981 and 1990) be reviewed so they are sufficiently comprehensive and all embracing to cover social media.”
The law lecturer said social media has made a difference to the issue of disclosure.
“As a matter of constitutional law, the prosecution must hand over to the defence prior to trial all of the information that it has in its possession that might either weaken its own case or strengthen the defence case,” he said.
“At one time that used to be simple and quite straight forward because there wouldn’t have been a lot of information there – it could be letters, diary entries, nowadays it is social media information, text messages, Facebook messages, internet usage and so on.”
Additional information in the social media age “imposes a huge burden” on both the prosecution and the defence, he added.
“It can lead to delays in trials, just the sheer, physical work of collecting this information.”
Meanwhile, the chief executive officer of the Dublin Rape Crisis Centre, Noeline Blackwell, has welcomed the recommendation of pretrial hearings in sex crime cases at which “side issues” could be addressed.
Any barrister planning to question a complainant about their sexual history would need to apply to do so at a pretrial hearing, at which complainants would be legally represented.
Ms Blackwell told RTÉ radio’s Morning Ireland that pretrial applications discussing the complainants’ sexual history were important to ensure that a complainant was not hit by an application that is “disconcerting at the very least, and horrifying to say the most” at the last minute.
Information and support were key areas identified in the report that need to be implemented quickly, she said.
Very often “the loneliest person” on the journey to prosecution for a sexual offence was the victim, who was often left lacking in support, information and basic legal advice, said Ms Blackwell.
Proposals to establish a clear pathway before a case is set down for hearing, were very welcome, she added, “so that when it comes to hearing, somebody will get heard on the day” and that anonymity would be granted in respect of all sexual assault cases. The victim was entitled to a hearing that allowed them to tell their story clearly without being “retraumatised”.
It was important that there be recognition of how different sexual offences were from other crimes, she said.
Minister for Justice Helen McEntee told the same programme that her plan was that within 10 weeks she would put in place an implementation plan for the the recommendations of the report setting out timelines with input from NGOs involved and the authorities.
Some of the recommendations she hoped to move on “very quickly”. Ms McEntee said it was important that victims know that they would be supported and that they would know the supports available to them.
The current delays in the system needed to be addressed, she added, and issues such as consent needed to be addressed further than in schools and universities.
The Council of the Bar of Ireland has also welcomed the recommendations by the expert group.
The council described the report as a “vital and important analysis” of the current criminal justice system’s approach to sexual offences, adding that it will be “foundational” in ensuring that the approach to such cases is “effective, humane and respects the fundamental tenets of fairness before the law”.
However, the council cautioned that “provision of adequate resources and funding for the recommendations will be critical to the successful reform of the current system”.
It said that it looked forward to engaging with the working group, the department and relevant stakeholders to ensure that its recommendations are “speedily and effectively brought to fruition”.