Friday 22 November 2019

Judge upholds contempt finding against three editors over childcare case

THREE newspaper editors could have asked a court about what they could publish in relation to childcare proceedings before they ran stories which resulted in them being fined for contempt, a High Court judge said today.

Irish Examiner editor Tim Vaughan, Evening Echo editor Maurice Gubbins, and former Irish Times editor Geraldine Kennedy were correctly found in contempt and fined €1,000 each in February 2011, Mr Justice George Birmingham said over articles in January 2011 referring to two children who suffered head injuries and were taken into care.

He concluded that District Court judge Con O'Leary was correct in these findings arising out of the publication in January 2011 of reports about "in camera" proceedings in which the children were taken into emergency care by order (of Judge O'Leary) on the application of the HSE.

Judge O'Leary found the three editors were in breach of the in camera rule because they published material tending to disclose the results of the childcare proceedings.

Subsequently, Judge O'Leary asked the High Court to rule on whether he was correct in finding there was a deliberate intention to publish in violation of the in camera rule or whether there was a reckless indifference to the rule.

He also asked the court to determine whether he was correct in law in determining that the provisions of the European Convention on Human Rights (ECHR) did not require the newspapers be permitted to publish the reports.

He also asked if he was correct in finding there was contempt where the reports did not identify or tend to identify the children involved.

In his judgment today, Mr Justice Birmingham said the three newspapers involved did not directly identify the children but did give quite an amount of background information which anyone who knew them (children) would have had the capacity to link them to the reports that they had been taken into care.

Other sections of the media, who were not involved in the contempt proceedings, "went much further" in identifying the children, the judge said.

"Shockingly", he said, the Irish Daily Mirror published material referring to the children by their family name, pinpointing the village they lived in and, in case readers did not know where the village was, mapped it by reference to the nearest town.

Mr Justice Birmingham found Judge O'Leary was correct to conclude there was no requirement to establish in this case (involving the three editors) that there was an actual intention to breach the in camera rule.

The three newspapers were trying to "stretch matters" by arguing that the stories were the mere publication of the making of the care orders because a considerable amount of information was provided about the children and their background, he said.

There was no basis for suggesting the ECHR required the editors be permitted to publish the articles and any conflict between it and Irish law did not arise, he said.

In this case, what was objectionable was that the editors took the decision to publish the material "without reference to the court" even though it was open to them to do so, he said.

They (editors) would no doubt have urged that in a situation where an incident "as alarming as this one at issue" had occurred, there was a public interest in reporting the HSE's intervention - and had that happened, the district judge might or might not have been prepared to contemplate some form of publication, perhaps subject to condition, he said.

However, that did not happen and instead the editors "decided to proceed with publication without reference to the court or to the parties to the proceedings whose rights were affected."

In relation to the €1,000 fine, with five days’ imprisonment in default of payment, Mr Justice Birmingham said the penalty was, in the circumstance, "a perfectly lawful one".

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