Anonymity for some rape ac­cused urged

Old­ing’s bar­ris­ter says some al­leged rapists likely to suf­fer ex­cep­tional dam­age Level of in­ter­est in Belfast rape trial was ‘a per­fect storm’, says lawyer

The Irish Times - - Home News - CONOR GAL­LAGHER Crime Cor­re­spon­dent

Peo­ple ac­cused of rape should not re­ceive anonymity be­fore con­vic­tion un­less they are likely to suf­fer “ex­cep­tional” rep­u­ta­tional dam­age, the bar­ris­ter who rep­re­sented rugby player Stu­art Old­ing in a Belfast rape trial has sug­gested.

Frank O’Donoghue QC rep­re­sented the for­mer Ire­land and Ul­ster rugby player dur­ing the nine-week trial af­ter which Mr Old­ing was ac­quit­ted of the oral rape of a young woman af­ter a night out.

The law in North­ern Ire­land al­lowed Mr Old­ing to be named pub­licly through­out the case. In the Repub­lic de­fen­dants ac­cused of rape can­not be named un­less con­victed.

Fol­low­ing the case, Mr Old­ing and his co-ac­cused Paddy Jack­son, who was also ac­quit­ted, had their con­tracts re­voked by Ul­ster Rugby and the Ir­ish Rugby Foot­ball Union, and both now play for clubs in France.

In re­sponse to the case which gar­nered huge pub­lic in­ter­est, re­tired judge Sir John Gillen con­ducted a re­view of North­ern Ire­land’s rape laws.

While rec­om­mend­ing sig­nif­i­cant re­forms, he re­jected sug­ges­tions that al­leged rapists should be anony­mous pre-con­vic­tion un­less nam­ing them could iden­tify the com­plainant. Mr O’Donoghue said he thought this was the cor­rect de­ci­sion.

Open jus­tice

“The fun­da­men­tal prin­ci­ple is one of open jus­tice, and that has al­ways in­volved, from time im­memo­rial, the nam­ing of the de­fen­dant. The ar­gu­ment is that why should some­one who’s up for rape be en­ti­tled to anonymity when if they are up for mur­der they are not.”

He told a con­fer­ence on me­dia re­port­ing of tri­als or­gan­ised by the Ir­ish Sports Law Bar As­so­ci­a­tion that Mr Old­ing’s trial high­lighted “a thorny is­sue which we have not fully teased out. And that is the is­sue of in­cur­able rep­u­ta­tional dam­age which can­not be cured by ac­quit­tal.” Mr O’Donoghue sug­gested that in ex­cep­tional cases an ac­cused could be granted anonymity if they would not be able to earn a liv­ing af­ter the trial even if ac­quit­ted.

“If we take the ex­pe­ri­ence of the two young men in this case – as a re­sult of the trial process it­self they were un­able to earn a liv­ing, not only in their own coun­try but in fact in the whole of the UK. That is an ex­cep­tional con­se­quence of a trial process. It doesn’t hap­pen in ev­ery case. Cer­tainly peo­ple have their rep­u­ta­tions dam­aged. But not to that level.”


The bar­ris­ter said that in ex­cep­tional cases the con­cept of a fair trial might call for such de­fen­dants to be granted anonymity.

For­mer Bar Coun­cil chair­man Paul McGarry SC said he found the con­cept “slightly trou­bling”. He said it sounded like grant­ing more rights to high-pro­file de­fen­dants such as sports stars or politi­cians. He said the ac­cused in the Belfast trial strug­gled to find a club not be­cause of the trial but be­cause of the un­con­tested de­tails of the men’s poor be­hav­iour.

Se­nior coun­sel Michael Collins said he does not think there should be ex­cep­tions for cer­tain in­di­vid­u­als for rep­u­ta­tional dam­age. He be­lieved the rule of not nam­ing de­fen­dants pre-con­vic­tion was the right one.

Speak­ing about the level of in­ter­est in the Belfast trial, Mr O’Donoghue said it was “a per­fect storm”.

“I don’t think I’ve ever been in­volved in a case like that be­fore, and I don’t think I will again.”

He said “in the main” he found broad­cast and print re­port­ing to have been of an ex­tremely good stan­dard, but that some was se­lec­tive or in­ac­cu­rate.

Re­gard­ing the wide­spread re­port­ing of the trial via Twit­ter, he said while some of it was very good, other ex­am­ples in­volved the “re­duc­tion­ism” of com­plex ar­gu­ments or ev­i­dence.”

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