The contempt laws are neither clear nor comprehensive, writes Carol Coulter, Legal Affairs Correspondent
The fact that eight trials had to be postponed last year due to inappropriate media coverage, combined with the successful prosecution of three newspapers for contempt, should be a wake-up call to the media.
The Director of Public Prosecutions (DPP) gave this information while calling for reform of our contempt of court rules at the weekend. Meanwhile, the Minister for Justice said that he is in favour of an independent Press Council, established on a statutory basis. Coverage of court cases, or of pending court cases, that was lurid or sensationalist, but stopped short of contempt of court, could be dealt with by such a Press Council.
Contempt of court rules are stricter in Ireland than in many common law countries. In the US, for instance, the media is able to comment extensively on criminal trials while they are going on. Even in the UK, where the law is similar to ours, people can be, and have been, effectively convicted by the media before any trial takes place. This was the case with the Birmingham Six, the Guildford Four and the Maguire Seven, whose trials took place in such an atmosphere of hysteria that they led to miscarriages of justice.
These cases should remind us that the contempt of court rules are not out-dated shackles on the freedom of the press; they arise out of our constitutional guarantee of a fair trial for everyone, regardless of how heinous the crime or how unpopular the accused may be. If even the most heinous crimes cannot be tried in an atmosphere free from condemnation and harassment, then the criminal justice system cannot work for anyone.
On the other hand, the Constitution guarantees the freedom of the press, and that justice is administered in public. In relation to court reporting, the Supreme Court has defined the media as "the eyes and ears of the public" for the purpose of the administration of justice in public. The contempt of court rules exist in the balance between this and the right to a fair trial. Serious or indictable crimes are tried by judge and jury, and the jury must be free to make up its mind on the evidence it hears in court. It must not be influenced by extraneous material, which may or may not be true, that comes from other sources. That is why the contempt of court rules prohibit any coverage of or commentary on the facts of a crime once a person is charged.
This prohibition continues for the duration of the trial. Newspapers and other media can report the trial in as much detail as they wish, provided that they report only what is said in the presence of the jury. This means that legal argument in the absence of the jury cannot be reported until the trial is over. Nor can information concerning the accused person that the jury would not have been made aware of in the normal course of the trial.
There are also rules concerning the treatment of juveniles. Those who are under 18 are legally children, and the law considers that their anonymity should be protected if they are the subject of court proceedings. This includes both criminal proceedings and those concerning their welfare and care. The law considers that their adult lives should not be blighted by public knowledge of either youthful criminal activity, which many young people leave behind in adulthood, or by being, through no fault of their own, the subject of care proceedings.
But the contempt of court rules are not clear or comprehensive, and judges have often imposed additional restrictions on the media in the course of trials. This has led to uncertainty within the media about exactly what is and what is not permitted.
In the Catherine Nevin trial, for example, Miss Justice Carroll prohibited colour writing about the trial, with particular reference to the demeanour of the accused and of certain witnesses.
A prohibition on all "colour" writing could mean that the public will be unaware of the atmosphere in court, when the jury will be fully aware of it. Preventing reporting of the demeanour of a witness could mean that it would not be possible, for example, to say that a witness had broken down in the witness box. If the accused was truculent or contrite in giving evidence, the jury would see this, and it might contribute to its final decision, but a prohibition on all descriptive writing would mean the public would be unaware of such developments during the trial.
This could be clarified by revised contempt of court rules, backed up by recourse to a Press Council for those who felt that certain coverage was inappropriate, even if not illegal.
That would contribute to an enhancement of reputation in the eyes of the public, and hopefully mean that more cases would not have to be postponed.