JUDGMENT was reserved by the High Court yesterday on a challenge by four newspaper groups and RTE to reporting restrictions imposed by a Circuit Court judge on a major drugs trial in Cork.
Mr Justice Morris told the court, that he would try to give a decision on the matter early next week.
The court is reviewing an order of Judge Anthony Murphy to ban day to day coverage of the trial of four accused persons at Cork Circuit Court. Last week the court gave leave to The Irish Times Ltd, Independent Newspapers (Ireland) Ltd, Examiner Publications Ltd, News Group Newspapers Ltd and RTE to seek a judicial review of Judge Murphy's order.
Yesterday Ms Mary Finlay SC, for Judge Murphy and the Attorney General, said that Judge Murphy had emphasised he was not placing a ban on the public attending. He was imposing a delay on any reporting of the trial, but the public could attend the trial.
She submitted that the trial was being conducted in public as required by Article 34 of the Constitution and that there was a common law jurisdiction to postpone contemporaneous reporting of a trial.
Ms Finlay also submitted that the courts had an inherent power under the Constitution to make an order in the administration of justice, and in particular in ensuring a fair trial, which would include the postponing of contemporaneous reporting of a criminal trial.
She was opposing the proposition put forward on behalf of The Irish Times Ltd that, if there was a conflict between the rights of the media and rights of an accused to a fair trial, then the rights of media must take precedence.
Without in any way taking away from the importance of the right of the media to report and publish contemporaneously the conduct of a trial, it must be subordinated to the overriding principle that the rights of an accused to a fair trial must be protected.
Ms Finlay said it seemed to her that there was a hierarchy of constitutional duties. There was the balancing between the media's right and the rights both of the accused to a fair trial and the constitutional duty of a judge to protect the integrity of a trial.
She accepted that the principle of freedom of the press and communication was guaranteed by the Constitution and could not be lightly curtailed. It could only be curtailed or restricted by a court where it was necessary for the administration of justice.
Ms Finlay said that a judge must form the view that there was a real risk of an unfair trial.
Dealing with the jurisdiction of the High Court to review Judge, Murphy's order, Ms Finlay said she would go some part of the way with arguments made on behalf of the media that if Judge Murphy erred in law as to his constitutional jurisdiction, then the High Court could certainly interfere.
She would put the proposition, slightly further in that Judge Murphy had to apply the correct legal principles in determining whether or not he had discretion. If he did not, then the High Court could interfere.
In trying to identify what were: the correct legal principles for this constitutional jurisdiction, it seemed to her, Ms Finlay said, that he must exercise this jurisdiction for the purpose of ensuring a fair trial for the accused.
The trial judge must also form the view, based on credible evidence, that the publication which he sought to postpone would pose a real risk of an unfair trial or a real risk that the trial would be aborted.
Mr David Holland, counsel for the Irish Times, Independent Newspapers and News Group Ltd said that if the judge was balancing constitutional rights it seemed to him that if the judge got the balance wrong he fell into an unconstitutional position because he favoured one right exclusively to the detriment of the other.