The Sub Judice Rule and Public Debate

Thirteen years ago, the late Charles J Haughey was sweating. It had been almost ten years since he had been in office, but his financial affairs were being carefully unpicked.  He found himself in the High Court, charged with obstructing the work of the McCracken tribunal.  Within twelve months, however he was off the hook.  Some pamphlets had been issued campaigning to 'jail the corrupt politicians', and then Tánaiste Mary Harney had said effectively the same.  The High Court upheld the claim that the comments had created a 'prejudicial climate', and while there was a 'fade factor' that would allow the effect to dissipate over time, potentially allowing a retrial, Haughey never again went before the courts, and died without any judgement being passed on him in 2006.

In the US, public debate is silenced when people go on trial.  That said, the Supreme Court in the US prefers to allow as much free speech as possible, while restricting juror access to newspapers.  This is an approach Kenya is trying to follow.  Newspapers in the UK shut down discussion on bulletin boards and highly circumscribe reporting on cases before the courts.  In South Africa, it is used to avoid debate.  Graham Steele argued a few years ago in the Canadian Parliamentary Review that the interpretation of sub judice as meaning "you can't talk about anything that is before the courts" is too broad.

Here, the government and the press are quiet as a mouse about Seanie Fitz, Sean Quinn, and that business from 2008.  "I don't want to comment as it's before the courts" is a standard response to journalist questions, and even to questions that are put to the defendants when they want to avoid an issue.

There are two problems to this.  First, when there are political trials - as in the case of both Sean Quinn and Sean Fitzpatrick - the State, the press and the establishment will completely clam up for fear of doing a Harney on it.  However, as in the case of Sean Quinn, the defendant is free to launch a press and public opinion campaign to drive his agenda.  Not only is this made possible by the extensive resources that inevitably attach to powerful men, but it is completely devoid of opposing views, given that the State has forfeited its right to defend, in the interests of Justice.

The second problem is that communications are no longer controllable.  The internet, twitter, blogs such as this are available for everyone to read, for people to be influenced by, and are almost entirely beyond the jurisdiction of the courts.  Granted there's a difference between a politician, or an institution such as a leading newspaper making comment or taking a side, but the differences are diminishing.  It may well be that the courts are asked to rule on this shortly - and I would imagine that defense lawyers will look to twitter for tweets that are potentially prejudicial in order to get their client off the hook.  The criminal justice system itself could find itself under undue pressure very quickly in that instance.

Harney's comments about jailing corrupt politicians didn't make any reference to Haughey in particular, but was still deemed prejudicial, a determination no doubt given additional weight due to her position as Tánaiste.  Would that have been the case if she was a back-bencher?  Quite possibly.  The law is unbalanced and needs to be reviewed, particularly in the case of Internet communications.  That will in turn force the courts to consider what really constitutes a 'prejudicial climate', and whether in fact the whole thing was made up in the first place.  For we all have our prejudices.

At the other extreme, it is undesirable to have a headline on the Irish Times on the day of a trial opening ordering "Jail The Corrupt Politician".  However, there are several pieces to this.

1. Would it be OK the day before the trial?  Or the week before? Does the sub judice rule have to kick in the minute a proceeding is initiated? 
2. Is there a difference between clearly identified opinion versus deliberate attempts to prejudice? For example, if a publication (or a politician) offers both sides of the story, is that enough?
3. While politicians occupy a special position within the balance of the separation of powers, whether as members of the legislature or the executive, their public utterances can be seen as particularly significant.  Newspapers however and other media serve an entirely separate purpose.  Can these be distinguished?
4. If a judge could indicate in the first instance whether a case was potentially going to require a consideration of a custodial sentence, could it be treated differently from a case where that was unlikely to be the outcome?

We need to respect the rights of the accused in our system, for the potential for the deprivation of liberty is an awesome power.  But where powerful accused persons can simply deploy their resources against the interests of the state - as Sean Quinn has done these past weeks - and the State is hamstrung in response, something is clearly wrong.  Coupled with the unfettered communications of the Internet, something's got to give.