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The Rule arises from the age-old common law presumption of innocence on the part of a person accused of a criminal offence.In its classic and most frequent application, the Rule prohibits the publication of material which is prejudicial to the chances of an accused person receiving a fair trial.
The Rule is most vigorously enforced, and its jurisprudence has primarily developed, in the context of criminal proceedings being heard or scheduled to be heard before a jury. A breach of the Rule is a strict liability criminal offence. In other words, intention to commit the offence is irrelevant. A breach can be punished by way of a fine and/or imprisonment.
There are, theoretically, no limits in respect of the level of fine or term of imprisonment that can be imposed. The Rule exists throughout the common-law world with some variations in terms of its scope. The Irish Supreme Court has described it as an area of law that is difficult to follow, “somewhat complex” and “archaic”. Conceptual difficulties with the Rule have arisen partly because the language used by the courts to describe the relevant test to determine its applicability have varied subtly over time, from case to case and judge to judge.
The test is currently settled on the issue of whether there is a “real risk”of an unfair trial following the publication in question. It is not a necessary ingredient of the offence that the publication results in any such interference. In order to preserve public confidence in the administration of justice, the Rule can be breached if there is a perception of such a risk.
A difficulty with the concept is that what one judge might consider a “real risk”, another judge might consider a “mere possibility” or “remote possibility of risk” which does not amount to contempt. The test, and its phraseology, is broadly similar throughout the common-law world and “substantial risk” appears to be interchangeable with “real risk”.
The language used to describe the Rule is somewhat ill-fitting and appears to suggest that mens rea needs to be proven to secure a conviction for such conduct (e.g. the conduct must have been ‘calculated’, ‘intended’ etc to interfere with the administration of justice). In nearly every case that one comes across, however, the publisher had no intention of deliberately interfering with the course of justice.
In the Irish context, the 1937 Constitution guarantees the media’s freedom of expression. It also guarantees due process of criminal trial. These Constitutional rights are echoed in the European Convention on Human Rights in articles 10 (freedom of expression) and 6 (right to fair trial and presumption of innocence).
Accordingly, the Irish Courts are required to carry out a balancing exercise between the media’s right to freedom of the expression on the one hand and the requirement to ensure the due administration of justice on the other. Where there is a conflict between the two, the proper administration of justice, particularly in the context of an accused’s right to due process, will always trump the media’s freedom of expression.
Common Breaches& Enforcement
In the context of criminal proceedings to be heard before a jury, publication of material, either pre-trial or during trial, that is suggestive of guilt on the part of an accused, will breach the Rule. For example, publishing details of an accused’s previous criminal history or bad character is considered a breach of
It is considered a contempt of court to publish or broadcast an image of the accused in handcuffs prior to trial, on the basis of it creating an impression that the accused is, in fact, guilty as charged. Accordingly, the classic “perp walk”, beloved of Rudi Giuliani during his time as a prosecutor, is not a feature of Irish law enforcement. Premature publication of evidence can result in a breach of the Rule. Publishing details of a voire dire (legal argument in the absence of a jury) in criminal proceedings will also breach the Rule.
Proceedings for breaching the Rule are usually prosecuted by the Director of Public Prosecutions. Such proceedings will invariably seek the imposition of harsh sanctions upon the publisher, to include sequestration of assets, fines, and perhaps even a term of imprisonment for non-corporate individuals deemed to be responsible for the publication.
If the DPP believes that a publication has endangered the integrity of a pending jury trial, she may seek to have the trial date adjourned to a later date to allow the publication to fade in the memories of potential jurors.If a current jury trial is believed to have been irremediably endangered, she may well see no other option but to apply to have the jury discharged.
In such an event, the offending media organisation will most likely be fined for breaching the rule and compelled to discharge the DPP’s costs for prosecuting the contempt of court proceedings in addition to running a real risk of being ordered to pay legal costs of the prosecution and defence teams up to the point of the trial collapse. Declaration of a mis-trial following a breach of the rule is unusual but not unknown.
There have been many judicial pronouncements to the effect that Irish juries are robust and that any endangerment of the trial can be remedied by directions from the trial judge. An accused who feels that his right to a fair trial has been prejudiced can also issue proceedings alleging contemptof court. A judge may use his/her inherent jurisdiction to instigate contempt proceedings, though this is extremely rare in the context of the sub judice rule.
If civil proceedings are due to be heard before a jury (e.g. a defamation trial) similar reporting precautions need to be taken.
Judge Sitting Alone
The case law reveals mixed views as to the capacity for the Rule to be breached in the context of proceedings before a judge sitting alone. In the context of relatively dry proceedings, such as judicial review litigation, or appellate courts dealing with legal issues alone and not facts the threshold for committing a breach of the Rule is substantially higher; given the unique position and training of judges, the balancing exercise required to be carried out between freedom of expression on the one hand and the proper administration of justice on the other is weighted more favourably towards the media than it is in the context of a criminal trial involving a jury.
However, as mentioned, the case law indicates part of the rationale for the Rule is not simply to ensure that proceedings are not prejudiced, but also to ensure that there is no interference with the administration of justice which might lead to a perception of prejudice.
Thus, in the context of a criminal trial, post-conviction but pre-sentence, where the jury has convicted the accused and has completed its work, it is possible to fall foul of the Rule if material is published that might give rise to a perception that the judge might be prejudiced, even where the judge himself states that he is not affected by such a publication. A trial judge stating as a fact that he/she had been prejudiced by a publication is not necessarily determinative of the issue but will be compelling.
From what point in time will a media organisation be required to observe the Rule? In criminal jury trial proceedings, it is the moment an accused is formally charged with an offence . In other common law jurisdictions,such as the UK,the rule can be invoked when proceedings are “imminent”. This is a less certain and somewhat subjective proposition.
In Ireland, the date of publication is the point at which the media outlet originally caused the material to be published and it is considered a one-off event.On the contrary, in England and Wales, Scotland and Australia, publication is deemed to be an ongoing event that only concludes when the material is withdrawn.Thus, Irish media enjoy relative certainty in terms of what can be published about criminal matters up until the point at which an accused is charged (subject of course to other considerations such as defamation law) and do not have to worry about material available online.
Issues in the Digital Age
The question of whether digital publication should be considered a singular or an ongoing event is likely to come under further scrutiny. In recent years, the courts have dealt with online publication by directing juries to refrain from carrying out any internet research concerning the case they are trying.
These directions are similar to time-honoured directions that jury members must refrain from discussing with family, friends etc the case under consideration. Until 20 years ago, a jury member would have found it relatively difficult to find previously published material concerning the matter he/she was trying. Now all that is required is a passable WIFI connection, a ‘Google search’ on a mobile phone and a host of material concerning any reasonably serious criminal matter is potentially available to any juror.
The Irish High Court considered this issue in Byrne v DPP where it was held that there is no onus on the DPP to monitor the internet in order to deal with publications that may prejudice active proceedings. The Court found that juries can be trusted to exclude any prejudicial publications from their minds where appropriate directions are given to them.
In the course of writing this article, a trial in the Central Criminal Court collapsed on foot of a juror disobeying such a direction and carrying out a ‘Google’ search following the conclusion of evidence in a criminal case. Another trial collapsed for similar reasons several months ago. One would have to be concerned that these cases could be the tip of the iceberg.
Media organisations reporting on criminal and civil jury proceedings before the Irish Courts need to be cognisant of their obligations. Oliver Wendall Holmes Jr famously observed that “the life of the law has not been logic; it has been experience.” It is a particularly apt quote in the context of the sub judice rule.
The Sub Judice rule in Ireland
Written by Daniel Coady,
Simon McAleese Solicitors
The term sub judice means “under judicial consideration”. The sub judice rule
(the “Rule”) is an ancient common law rule developed over the centuries to protect the administration of justice and, latterly, to prevent ‘trial by media’. The Rule is one strand of the Irish Law of Contempt of Court, which has several branches, both civil and criminal.
Daniel Coady is a solicitor at Simon McAleese Solicitors, a boutique litigation and media law firm. Daniel’s practice comprises a mixture of contentious and non-contentious work. His contentious media practice is mostly defence work where he represents publishers, broadcasters and insurers.He has appeared in all the Irish civil courts, including the Court of Appeal and Supreme Court, and has acted in some of the more recent seminal decisions on defamation and contempt of court in Ireland. He has also represented clients in proceedings before WIPO and the European Court of Human Rights. On the non-contentious side, he provides round the clock pre-publication advice to publishers and independent production companies in respect of defamation, privacy, contempt of court and intellectual property issues. He also advises production companies, writers, publishers, actors and agencies in respect of contractual matters including production and licensing agreements.