The Supreme Court yesterday reserved judgment in a case which may have far-reaching implications for the rights of the media to report the courts and for a citizen's right to have justice administered in public.
Last February, Judge Anthony Murphy, sitting at Cork Circuit Criminal Court, postponed the contemporaneous reporting of a major drugs trial. The judge said there was a risk that press reports could lead to the trial being aborted.
He said the media could report some facts, such as names and addresses of the accused and the charges. He said the trial was not in camera as the court doors remained open and the public had access.
The Irish Times Ltd and other media organisations unsuccessfully appealed the decision to the High Court. In his judgment on the appeal, Mr Justice Morris disagreed with Judge Murphy's view that the trial was a trial in public but he found Judge Murphy had the jurisdiction to make the order.
He said the judge had balanced the rights of the accused to a fair trial against the right of the media to contemporaneous reporting and had correctly found the accused's right was paramount.
This week, the Supreme Court heard the appeal against the High Court decision. Counsel for The Irish Times Ltd, Mr John Gordon SC, said Judge Murphy's order set an "extraordinary precedent" and had major implications for the right of the media to contemporaneously report the courts.
The core of the argument advanced by the media organisations was that Judge Murphy had no jurisdiction to make the relevant order. They heavily relied on the wording of Article 34.1 of the Constitution which states that justice "shall be administered in public" except in "such special and limited circumstances as may be prescribed by law".
The media groups further argued that, should the Supreme Court find the judge had jurisdiction, then that jurisdiction existed only in the most limited circumstances. They said the accused's right to a fair trial does not exclude all other rights.
Ms Mary Finlay SC, for Judge Murphy and the Attorney General, argued that Judge Murphy had jurisdiction to make his order banning contemporaneous reporting if it was necessary to protect the accused's right to a fair trial.
According to Mr Gordon, if the High Court decision is upheld, then there is "a general jurisdiction in all judges to effectively ban, as they see fit, the press from reporting cases". This would undermine the public's right to know what happens in the courts and the constitutional objectives of freedom of speech.
The case being taken by the media organisations was "very important", said Mr Gordon, as the public effectively relied on the media for its information on what happens in the courts.
The media has a long and responsible tradition of court reporting, a fact acknowledged by many judges. Mistakes are made but are rare and, in the vast majority of cases, can be remedied by judicial direction.
The right of the accused to a fair trial is jealously and properly guarded by the courts. But fair and accurate reporting cannot prejudice a fair trial. Court reporters are responsible in their work and daily refrain, in many cases without judicial direction, from publishing material which may be prejudicial or cause a trial to be aborted.
Discretion is also exercised in reporting material from witnesses who are concerned about identification and in the reporting of sensitive or intimate matters, particularly in rape and incest cases. It is not a code of conduct laid down by law but is an unspoken code strictly adhered to.
It is an important part of the constitutional framework that justice is administered in public - and is seen to be. The vast majority of people rely on the media to be informed about what is happening in the courts. Public confidence in the legal system is dependent on being informed. The more parts of a case are removed from the public arena, the more suspicious the public is likely to be.
The circumstances in which there can be anything but open operation of the courts must be very limited and clearly defined. Secrecy breeds suspicion and undermines confidence in one of the central arms of democracy.