RATTIGAN -v- DPP
SUPREME COURT
Concurring judgment of Mr Justice Hardiman, given on May 7th, 2008.
JUDGMENT
The evidence of the bloody handprint, in its unchallenged and unexplained condition, was an exceptional factor which "cries out for a proper forensic consideration, and one capable of deciding the general issue by itself, which is unaffected by delay or publicity". The appeal should therefore be rejected.
DECISION
But for this exceptional circumstance, the DPP's "wholly unexplained period of delay and the publicity which took place in this period would lead to the granting of relief", Mr Justice Hardiman said.
He said this case could not be adduced in support of the proposition that a cumulative delay of 34 months, "which is wholly unexplained", cannot ground an entitlement in the person who suffers it.
Mr Justice Hardiman added: "Moreover, one reads with some surprise in some of the newspaper articles complained of that the gardaí apparently felt driven to share with a newspaper the fact that they had written on several occasions to the Director of Public Prosecutions, but without evoking any reaction."
He went on to consider the question of the prejudicial effect of pre-trial publicity on a case such as this. "The basis upon which such material is not permitted to be published is that it interferes with the right of every citizen to a fair trial before a jury unaffected by loud unreasoned assertions of the defendant's guilt". he said. "The applicant, and every citizen, is entitled to have the evidence against him, if any, presented in court in his presence and that of his representatives so that no improper evidence is admitted against him and he is able to make an immediate answer to any proper evidence adduced against him," he said.
He questioned the assumption that publications that prejudge the result of cases have their effect exclusively on jurors, and are incapable of having any untoward effect on judges. He also questioned the assumption that jurors would not remember details contained in a publication, and that any detrimental affect could be corrected by instruction from the presiding judge.
"I do not accept any of these propositions. Neither do I accept their converse: there is a considerable need for serious research into these topics and for ceasing to rely on guess work or vague impressions," he said.
"Nor is the law of contempt, in my view, in any way unreasonably restrictive of freedom of speech, whether that of the media or of anyone else. There is ample scope to discuss crime in general. What is not permitted is to prejudice, in one way or the other, the fair trial of an individual who, at the time the publication is made, has already been charged."
"The principles which the court applies in such cases are long established," he said, citing the case of Fr Patrick Ryan, whom the attorney general refused to extradite to the United Kingdom in 1988 on terrorist charges including murder, on the grounds that he would not be able to receive a fair trial because of lurid publicity in English newspapers.
The then attorney general had said in that case: "Every citizen has a constitutional right to a fair trial . . . The right to a fair trial includes a right to protection against the creation of prejudice or animosity in the minds of potential jurors, such as would effectively deprive a person of the right to a non-biased trial.
"The presumption of innocence is not a procedural rule governing the onus of proof at trial. It is a fundamental principle of substantive law. Any decision to prosecute implies no more than that there is an issue to be tried as to whether the person charged is guilty or not guilty."
Mr Justice Hardiman said he wished respectfully to express his agreement with the principles outlined in the above statement.
"I also wish specifically to express my agreement with what was said in the judgment of Mr Justice Geoghegan as to the responsibilities of the Director of Public Prosecutions in this regard," he added.
"I think it appropriate, after a period of years in which egregious publications have attracted no sanctions from the courts to state plainly that there is an obligation on every citizen to protect, or at least not to interfere with, the rights of every other citizen to a fair trial. This obligation required the specific and serious consideration of the media and the courts."
Mr Justice Hardiman also considered the question of the non-recording of the interviews between Mr Rattigan and the Garda. While agreeing with Mr Justice Geoghegan that no entitlement to relief arose here on this ground, he continued: "I would regard with horror any slow drift back to non-recording on the basis of a confidence that the courts would not, in practice, do anything meaningful about it.
"I wish to stress that in my opinion non-recording should normally mean exclusion and that only in this way can the courts ensure that recording will in practice be routine . . . The recording of interviews in Garda stations must be assiduously policed by the courts."
However, because of the exceptional features of the case, he dismissed the appeal against Mr Justice O'Higgins's decision.
The full text of the judgment is on www.courts.ie