We should be concerned that publicity surrounding controversial trials may sometimes have a greater role in determining their outcomes than anything laid down in law, writes John Waters.
There is little doubt that the magnification of the circumstantial, the hunch, or unadorned popular prejudice is in some cases creating consequences which the facts do not support.
The potential effect of press coverage on juries is a complex and controversial question, but it is not the only concern. In some instances, the background radiation of rumour, innuendo and superficial impression can create conditions in which certain elements of the media and/or population refuse to accept the outcome of a trial and demand the continued punishment of an accused long after the tariff of the court has been paid.
The Wayne O'Donoghue case provides a dismaying example. In other instances, as in that of Malcolm McArthur, the climate of public opinion can make it difficult for someone to be released from prison even after many years, even though the authorities no longer consider them a threat to society. Thus, whereas some convicted murderers can emerge quietly in a few years to get on with their lives, others, by virtue of the residual imprint of publicity, are destined to die in prison.
Unless there is some radical development, Catherine Nevin, convicted of the murder of her husband Tom, may remain in this latter category. It is hardly necessary to rehearse the circumstances of her conviction eight years ago, after perhaps the most notorious and highly-publicised trial in Irish criminal history.
Most people have a clear memory of Catherine Nevin, but many of these impressions arise less from the evidence than from the media commentary that attended her trial. There was no forensic evidence linking Catherine Nevin to the death of her husband in 1996. The brunt of the State's case concerned alleged approaches by Catherine Nevin to three men who gave evidence that she separately requested them to kill her husband. All three allegations related to 1989 and 1990, several years before the murder. Nevin was convicted on three counts of solicitation, and sentenced to seven-year concurrent sentences on each, as well as receiving a life sentence for murder. She continues to protest her innocence. Tom Nevin's killer has never been found.
Among the remarkable elements of the trial were suggestions of paramilitary connections involving Nevin, her late husband and their pub, Jack White's, in which the murder took place.
During the trial, the defence applied for discovery of Garda Special Branch files in respect of several key witnesses and also the deceased, Tom Nevin. These files were ruled "irrelevant" - and therefore inadmissible - by the trial judge, the late Mella Carroll. At this remove it appears increasingly odd that although it was established that Special Branch files existed in respect of several key witnesses, these could be deemed irrelevant to the proper investigation of the murder. Nevin was tried in 2000, when the Northern peace process remained fragile and matters of national security may plausibly have curtailed the full ventilation of the murky background to her husband's killing. Nearly a decade on, these considerations should have less force. Nevin's solicitor, Anne FitzGibbon, has recently applied to the Court of Criminal Appeal for an order to permit the introduction of a new fact, which could open the way for a full appeal. This evidence relates to alleged links to subversive/illegal organisations, to the Dublin/Monaghan bombings of 1974 and to Garda informers.
Patrick McEntee, senior counsel for Catherine Nevin at her trial, was subsequently appointed investigator of the Dublin/Monaghan bombings. Reporting in March 2007, Mr McEntee declined to adjudicate on one particular aspect of the investigation. He said in his report that his inability to refer to this aspect was a matter of law and related to the provisions of the Commissions of Investigations Act 2004. He also stated that he had conveyed to the Taoiseach the nature of his difficulty. Mr McEntee has recently indicated in correspondence with Catherine Nevin's solicitor that, in the course of his investigative work in the commission, he had access to privileged material which requires that he should not advise Catherine Nevin on her application to the Court of Criminal Appeal.
Whatever the nature of the undisclosed files, it is absolutely vital, in the interest of justice, that they be made available to Catherine Nevin's defence team.
In recent weeks, editors have again spoken of their commitment to the public interest in respect of murder. In the Nevin case, the complex and somewhat tedious evidence - as opposed to the kind of prejudiced speculation that sells newspapers - suggests that there may now be a serious doubt about the reliability of her conviction. The media, with the exception of one tiny-circulation magazine, has shown no interest.