Sub judice, meaning “under judicial consideration”, is a conversation-stopper. At times its deployment in political debate is a convenient way to shut down an awkward discussion; at other times it’s an important reminder that loose talk about a subject that is pending before the courts could fall foul of the rules on contempt of court.
Given that Ireland doesn't have a contempt of court act that would set out those rules in law, the parameters are not quite clear, but the prevailing view is that public comment will rarely amount to a contempt of court unless it is plainly intended to influence a case, or where it's likely to prejudice a jury trial.
In general the courts have been more relaxed about comment on non-jury cases where the decision will be taken by a judge or judges alone. In 1983, an injunction was taken against Magill magazine preventing it from publishing an interview with the accomplice of a man who had been convicted of murder but whose appeal was pending before the non-jury Court of Criminal Appeal.
Won on appeal
Magill
, then edited by Colm Tóibín, lost in the
High Court
but won on appeal to the
Supreme Court
, where Mr Justice Niall McCarthy said there was “no suggestion that the publication of the impugned material would scandalise the Court of Criminal Appeal or undermine, in any sense, the administration of justice or bring it into disrepute”.
Three years later, in a case known as Weeland v RTÉ, Ms Justice Mella Carroll said that to allege that a High Court judge would be influenced by "a TV programme which was transmitted months before, rather than by the evidence given in court, I find to be unbelievable".
Most examples are from criminal cases. Contempt of court arises less frequently in civil actions. In judicial reviews – the type of action being taken by Alan Shatter – the scope for contempt is particularly narrow. This is because judicial reviews are by definition limited to net legal issues. They’re not about the merits of a person; normally they revolve around whether someone acted inside or outside their jurisdiction.
In the case of Desmond v Glackin, in 1992, it was claimed that remarks made by the minister for industry and commerce prejudiced judicial review proceedings which were then pending. Mr Justice Rory O’Hanlon said he was “unimpressed” with the claim of contempt and did not consider the interview made it “difficult for a judge of the High Court . . . to decide in an objective and unbiased manner the legal issues which arise for consideration in these proceedings”.
Not all the case law goes the same way, but for the most part the line of thinking is clear: juries may be influenced by outside commentary, but we judges are trained to decide cases on the evidence.
Inside the Dáil, different rules apply anyway. There, members enjoy privilege and are in effect immune from prosecution for anything they say in the chamber. Recognising that, the Oireachtas has taken it upon itself to come up with its own in-house rules, called Standing Orders, and its own set of internal sanctions.
In his decision to disallow a debate on a motion to establish a commission of inquiry into claims of Garda malpractice, the Ceann Comhairle appears to have relied on Standing Order 57, which states that “a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a judicial tribunal”. This is vague enough to be open to interpretation.
On one reading, the Ceann Comhairle was simply upholding the house rules. Given that Mr Shatter’s action is listed for hearing in April and that there could at least be the potential in a partisan political debate for the discussion to veer onto the terrain that will be under scrutiny in the High Court, it would be in the best interests of the institution to postpone. Moreover, the commission of inquiry itself is not in jeopardy.
To others, the Ceann Comhairle had far more room for manoeuvre than he realised. The Guerin report and its recommendations are issues of major national significance; debating such questions is a big part of what a parliament is there for.
Shatter’s case is not only a non-jury civil case; it’s a judicial review that will centre on net legal points that are considerably less susceptible to prejudice than, say, a criminal case or a plenary civil case where witnesses give evidence.
On this reading, it would have been sufficient for the Ceann Comhairle to warn TDs to be mindful of pending proceedings, opt against going with the legal advice and allow the debate to take place.
