The most serious implications flow from yesterday's High Court judgment by Mr Justice Morris in the case of alleged drugs-importation in Cork harbour and the rights of the media to report on the trials of the persons accused.
Three newspaper groups (including The Irish Times) and RTE had appealed to the High Court against a decision by Circuit Court Judge Anthony Murphy to prohibit contemporaneous reporting of the case, save for basic details such as the names and addresses of the accused, the offences with which they are charged and so on. Judge Murphy did not prohibit reportage of the case after it would have been concluded. His concern was that contemporaneous reporting might cause a mistrial.
The requirement that justice be administered in public is enshrined in the Constitution (Article 34.1). There are exceptions, of course, such as matters involving minors or family law cases, where the greater good of protecting the very young or the very vulnerable has to take precedence. The effect of Judge Murphy's decision, supported now by the authority of the High Court, is to develop a new category of cases which may not be reported - where a judge believes that day to day media reporting may prejudice the right of the accused to a fair trial.
Mr Justice Morris invokes the Constitution's "hierarchy of rights", citing the celebrated case of DPP -v- Shaw, in which a detective decided to restrict a suspected person's right to liberty in order to save another person's life. In the hierarchy of rights under the Constitution, Mr Justice Morris decided, the right to a fair trial must come before that of the media to report contemporaneously on a case at hearing. But, this newspaper suggests, where Mr Justice Morris fails to respond to the spirit of the Constitution is in deciding that in order to vindicate the greater right, the lesser right has to be completely suppressed. There is no evidence of any attempt here to find a balance. One right is simply extinguished.
There is a range of devices open to a judge who fears the effects of reporting errors, from specifically warning the media of the particular sensitivities of a case to instructing a jury to ignore published reports. Other judges, in other cases, have so advised the media in delicate cases, stressing the particular need for accuracy or for observing confidentiality. And the results have inevitably been as desired. The media do not seek to thwart judges or the courts.
The newspapers in this State have an excellent record in court reportage. Only in a tiny fraction of cases is there the slightest ground for complaint over accuracy, detail or balance. And indeed, in many cases where problems do occur, they are due to inaccurate documentation, or erroneous information being transmitted from court officers and staff to reporters. What we are left with as a result of this judgment, is a situation in which any judge may decide to ban contemporaneous reporting, because he or she fears there is a risk that a case may be misreported. The media will be left with the right to report the evidence, the verdict and the sentence after the trial has concluded. These sort of arrangements surely belong behind the old Iron Curtain rather than in a contemporary Western European democracy.
Judge Murphy's paramount concern for the conduct of his court and the rights of persons accused to a fair trial is to be admired. But a process has been set in train here which has thrown the baby out with the bathwater. The judgment will be appealed to the Supreme Court by The Irish Times and, if it proves necessary, beyond it.