Byrne -v- DPPNeutral citation (2010) IEHC 382.
High Court
Judgment was delivered on November 11th, 2010, by Mr Justice Peter Charleton.
Judgment
It was not part of the function of the Director of Public Prosecutions to surf the internet in order to find and deal with any information on an accused facing a criminal trial. The material on the applicant did not suggest he was guilty of the crime with which he was charged and there was no risk of an unfair trial.
His application that the DPP would seek out and have removed information on him published on the internet was refused.
Background
Niall Byrne is a former Securicor employee with no previous convictions, facing charges in connection with the extortion of money from a Securicor employee through the kidnapping of his family in March 2005.
The applicant was arrested in May 2006 and the book of evidence was served in August that year. In April 2009, a jury was empanelled to try the applicant along with others, of whom two were unavailable because they had emigrated to the Philippines.
There was a lot of media coverage of the crime and the subsequent trial. In May, the trial judge had his attention drawn to material on newspaper websites relating to the bail hearings concerning some of the accused men, and he ordered this material to be removed. In July that year a “particularly unfortunate” broadcast took place on the Marian Finucane Show on RTÉ which included “intemperate and silly comments” from a panel member that were “entirely inappropriate in the context of an ongoing criminal trial”, Mr Justice Charleton said.
However, when the judge questioned the jury he discovered that none of them had heard it.
In July, three of the accused were convicted and sentenced to 25 years in prison. The jury disagreed on its verdict in relation to two of them, including the applicant.
Mr Justice Charleton pointed out that a jury was randomly selected from the general community and many were likely to be adept at internet searches.
The danger was that while it may appear the applicant was getting a fair trial on the evidence, in fact members of the jury may be conducting their own research and reaching a conclusion on what was reported in the media months or even years earlier.
Decision
Mr Justice Charleton said it was appropriate to refer to the test whereby, through adverse publicity, a trial may be prohibited.
Where there is a real and substantial risk of an unfair trial due to either delay or adverse publicity, which could not be made fair by directions of the trial judge, the trial should be prohibited.
There was a difference between delay and pre-trial publicity, Mr Justice Charleton said. Over time, pre-trial publicity could fade.
In the majority of cases, the public scrutiny of the administration of justice took place through media reporting. The media therefore had a responsibility to represent the people of Ireland in their attendance at court proceedings. The media were entitled to comment on matters of public controversy, including crime.
What was not appropriate was for the media to whip up prejudice against an accused, by stating or inferring that his guilt was obvious or was to be presumed by reason of his background or association with a criminal gang. The publicity complained of by the applicant in this case did not meet the test of adverse pre-trial publicity. His entitlement to a presumption of innocence was not infringed.
In relation to the influence on criminal trials of access to the internet, Mr Justice Charleton referred to the Law Reform Commission report on jury service in March 2010, which recommended the creation of an offence for jurors to conduct independent inquiries outside the courtroom.
While this idea seemed to be sensible, the court was not entitled to make a ruling in favour of the applicant with a view to promoting it.
He examined research on juries in various common law jurisdictions, including an Australian study which showed there had been isolated cases where jurors had conducted internet searches. Among the recommendations were forms of warnings that may be given to jurors by trial judges, that were not very different to those already given in this jurisdiction.
He said he did not think it was the duty of the DPP to sweep the internet and engage in correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person.
It was not appropriate for this court to lay down a model warning to be followed by a trial judge, who already as a matter of practice indicated to the potential jurors that they should inform the court if they knew the accused or there was any other reason why they might not be impartial.
Mr Justice Charleton also rejected the suggestion that people who had themselves been the victims of crime should not serve on juries, which was the entitlement as well as the duty of citizens.
Fundamentally, there was no reason to believe that juries could not be trusted if appropriate directions were given to them, perhaps coupled with an explanation as to why this was necessary.
Already judges warned juries that they must not discuss the case with anyone and recently many have added a warning that they should not surf the internet in relation to any participant in a case. Trial judges could be trusted to exercise the control of trials properly and juries could be trusted to act judicially, he said.
For all these reasons, he rejected the application.
The full judgment is on www.courts.ie.
Feargal Kavanagh SC and David Whelehan BL, instructed by Kevin Tunny solicitors, Tallaght, for the applicant; Anthony Collins SC and Siobhán Phelan BL, instructed by the Chief Prosecution Solicitor, for the DPP.