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.
“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.”
Acquitted
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.”
Selective
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.
“You’re highlighting one very small aspect of the trial in 240 characters,” he said. “There was a general view among the lawyers in the case that there was a real danger that the social media reports might distort the reader’s perception of the trial.”
