Constitutional - Right To Trial In Due Course Of Law (Pre-Trial Pubicity)

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Pre-Trial Publicity Introduction

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As with most due process rights – test is “Real risk of an Unfair Trial”

This time, on account of the adverse publicity generated by the Trial itself.

Potential and actual jurors could be prejudiced by the widespread media coverage.

In D v DPP (1994) Egan, J’s dissenting judgement coined the phrase “Fade Factor” regarding the time that should pass prior to the case being allowed to go ahead.

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D v DPP [1994]

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FACTS: D stood trial twice on charge of indecent assault. Relatively unique circumstances: On a boat off the coast of Donegal. Found not guilty on the first trial of 10 other charges, by direction of the Trial Judge. At the second trial, adverse publicity, prejudicial newspaper reporting, had led to a discharge of the jury. Following this second trial, a newspaper article detailing the plight of the victim appeared. It detailed enough, according to the accused, to both identify his trial and himself, and therefore accused was prejudiced

HELD: Notwithstanding the above, Court asserted that Jurors could be directed to ignore such coverage, if such coverage indeed had reached them (it was a one-off article)

Egan, J’s dissenting judgement coined the phrase “Fade Factor” regarding the time that should pass prior to the case being allowed to go ahead.

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Z v DPP [1994]

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FACTS: Alleged victim of Rape was “X” in the “X” case (AG v X [1992]). Extensive media attention. And clear, in the X case, that X had been raped. Nonetheless, Z was not successful in stopping his trial.

HELD:

1.Right to Fair Trial had to be weighed against Community’s right to prosecute (and State’s duty to prosecute)

2.Only potentially unfair if appropriate rulings and directions by the Trial Judge could not eliminate any potential unfairness.

3.Dilemma of TJ citing the publicity and thereby drawing attention to it was conceded, but was not deemed to be enough to render the trial potentially unfair.

Finlay CJ:

“I take the view that a trial judge will be able in a specific way, and with considerable specific detail, to point out to a jury at the very commencement of the trial.......that the controversy, media publicity, newspaper and magazine commentary.....are wholly irrelevant to the trial and must be completely put out of their minds”

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Magee v O’Dea [1994]

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FACTS: Extradition to the UK of a suspected terrorist. Specific coverage using headlines such as “Army Murder: Find this Man” – with an accompanying picture of the accused, and “GET HIM: IRA murder cops name Gun Psycho”

HELD: Flood, J held this adverse publicity represented the real risk of an unfair trial.

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DPP v Haugh (No. 2) [2001]

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FACTS: Challenge to a stay on the trial of Charles Haughey. Rally organised: “Jail the Corrupt Politicians”, 40,000 leaflets with comments specifically prejudicial to Haughey. Judge used a Questionnaire to the Jurors to assess the extent of any potential prejudice.

HELD: Stay on proceedings overturned. “Fade factor” in operation plus, court noted only 300 people turned up for the rally in question

(NOTE: use of the questionnaire was ultra vires the Juries Act)

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Zoe Developments v DPP (1999)

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HELD: appropriate to adjourn trial for 6 months to allow ‘fade factor’ to operate

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Rattigan -v- DPP (2008)

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The High Court refused to grant an injunction restraining the further prosecution of the applicant for murder. The grounds upon which leave was granted to apply for judicial review were that there had been prosecutorial delay which prejudiced the applicant’s right to a fair trial. It was contended, inter alia, that because most of the witnesses had died during the period of delay, the accused’s defence had been impaired. The respondent contended that there could be no prejudice to the accused as his bloody handprint at the crime scene was strong forensic evidence, which would be the major evidence at the trial. The applicant appealed to the Supreme Court. The applicant further argued that pre-trial publicity since then had also prejudiced his right to a fair trial.

Held by the Supreme Court (Geoghegan J: Murray CJ, Hardiman, Denham and Fennelly JJ concurring) in dismissing the appeal:

I. that an accused had a right to a fair trial which took precedence over the right of the public to have accused prosecuted;

II. that one of the interests protected by the right to trial with reasonable expedition was the right to limit the possibility that the defence would be impaired;

III. that, as none of the witnesses provided an alibi for the applicant, their absence would not prejudice the applicant’s defence so as to justify prohibiting the trial;

IV. that, in a trial where there was independent forensic evidence implicating an accused, a court, in considering whether there was a real risk of an unfair trial and whether it should prohibit the trial, was entitled to take that fact into account.

per (Murray CJ) that the evidence of the bloody handprint, in its unchallenged and unexplained condition, was itself an exceptional factor which was capable of deciding the general issue of the accused’s guilt which was unaffected by delay or publicity.

Obiter dictum: that prohibiting a criminal trial could not be adopted to punish the media for prejudicial publicity as the contempt of court laws were the appropriate vehicle to use for that purpose.

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People (DPP) -v- Dundon (2007)

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The applicants applied for leave to appeal. They contended inter alia: that the prosecution had failed to make full pre-trial disclosure to the defence; that no trial should have taken place because of the media interest and publicity; that the trial judge erred in refusing to direct separate trials; that there were inconsistencies in the evidence; that there were irregularities in the jury; and that the trial judge failed to give an accomplice warning to the jury.

Held by the Court of Criminal Appeal in refusing the application that the application for leave to appeal failed on all grounds.

Court found that the jury had been given, and heeded, appropriate warnings in the circumstances.

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Byrne -v- DPP (2010)

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The applicant was charged with various offences arising out of a kidnapping and robbery that received considerable newspaper and other media publicity. The applicant was tried together with a number of other people, three of whom were convicted but the jury disagreed on their verdict in respect of the applicant.
The applicant brought judicial review proceedings seeking various declaratory reliefs relating to the removal from the internet of publicity or comment about the charges that he faced or the conduct of his previous trial. He argued that the accumulation of the publicity at the time, coupled with contemporary reports of the trial and sentencing process, would prejudice his prospects of a fair re-trial. He submitted that, as an accused person, he had the right to demand that the respondent should search the internet in order to find any sites containing material that might be regarded as prejudicial to the prospect of a fair trial and then engage with relevant internet service providers to ensure its removal. It was argued that there was a danger that while it might appear that an accused was getting a fair trial on the basis of the evidence presented in court, the jury might be conducting their own research based upon earlier media reports on the internet.

Held by the High Court (Charleton J.), in refusing the relief sought,

1, that there was no duty on the respondent to sweep the internet through searches and correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person whose trial was pending. The world of the media was not the responsibility of the respondent.
Rattigan v. Director of Public Prosecutions [2008] IESC 34, [2008] 4 I.R. 639 considered.

2. That, although the trial and the conviction of three of the accused was covered extensively by the newspapers, references to the applicant were presented as allegations or as part of the prosecution's case as made in court. The publicity complained of by the applicant did not meet the test of adverse pre-trial publicity that potentially could have an effect on the fairness of his re-trial for the offences with which he was charged.
Rattigan v. Director of Public Prosecutions [2008] IESC 34, [2008] 4 I.R. 639 considered.

Obiter dictum : It was not appropriate for the court to see as its function the statement of any model warning to a jury panel, prior to individual jurors being sworn to try a case, or to indicate to trial judges what was appropriate for them to say once the jury had been sworn in and began to participate in the trial. Trial judges were to be trusted to exercise the control of trials properly and juries were to be trusted to act judicially.