Last week's Supreme Court ruling on a contempt of court case involving The Irish Times will have come as a major blow to the media as a whole - all the more so since the five judges were unanimous in their decision.
The ruling - in a case involving a Dublin criminal, Eamonn Kelly, will almost certainly stifle media reporting and comment on court cases, at least in the period between conviction and sentencing, in the short term, but the court's decision and call for legislation may actually benefit the media in a broader context, in the long term.
It is 6 1/2 years since the Kelly case emerged. The Irish Times was found to be in contempt of court and fined £5,000 arising out of a story published after the accused, Kelly had been convicted on drugs charges but before sentence was passed by the judge. The paper appealed to the High Court, which referred the case to the Supreme Court.
That court's views were handed down last Thursday.
In response to two questions put to it, the Supreme Court took the view that it could be contempt to publish such an article after conviction but before sentencing, and that this could be so despite the constitutional guarantee of freedom of expression.
On the positive side, the court did not say that such an article would constitute contempt but rather that whether it did or not would have to be determined having regard to all the circumstances.
On the negative side, this view appears to claw back some of the ground gained in previous Supreme Court decisions. In Cullen (1984) the court had taken the view that judges would not be prejudiced by media coverage, particularly in an appeal where they were deciding issues of law only.
The freedom of the press and of communication guaranteed by the Constitution could only be curtailed or restricted where necessary for the administration of justice, the then Chief Justice said.
Since that time, concern has focused on the likelihood of prejudicing juries rather than judges, but there has been a noticeable trend towards a less paternalistic view of juries and their need for protection from influence by the media. However, it may be that the thrust of Mr Justice Keane's assertion that judges are also human, is not to curb that trend but merely to emphasise that the possibility of prejudice can not be ruled out altogether.
In any event, the concern of the court seemed to lie more with the need for justice to be seen to be done.
The Irish Times article was predisposing the reader to a negative view of the accused and, although it had not urged any particular sentence, there was a danger, the court said, that such articles could gain credence as a method of achieving a result, and that would be detrimental to the administration of justice as a whole.
It is beyond argument that the administration of justice is a very important aspect of society and must be safeguarded; but whether it requires the high level of protection given by contempt of court law is open to question. The Supreme Court itself, in its far-reaching decision in Irish Times v Murphy (1998), acknowledged that the courts, too, had to be part of a modern democracy in a technological age. Hence, one would expect, the need to revisit many pre-democratic aspects of contempt of court law.
In fact, in the wider context, this is what the Supreme Court has done. Ms Justice Denham noted the absence of contempt of court legislation in this jurisdiction and the benefit that would accrue from the legislature addressing such matters of policy that were so important in a democratic society. Both she and Mr Justice Keane pointed out the lack of clarity and the uncertainties that surround so many aspects of contempt law.
The whole area of contempt had been examined in detail by the Law Reform Commission in its consultation paper (1991) and report (1994). It, too, recommended statutory intervention.
It may be argued that what is required is the replacement of common law contempt by more narrowly defined statutory offences, co-extensive with the needs of the courts and not all-embracing as at present. Other European countries do not have the sweeping powers of common law contempt.
Instead, their codes make provision for specific offences relating to the publication of matter harmful to court proceedings and fair trial.
Even the UK, where common law contempt originated, has passed legislation - the Contempt of Court Act 1981 - to clarify, amend and update many aspects of that law. It was prompted to do so by a decision of the European Court of Human Rights against it, Sunday Times v UK (1979).
Contempt law in the UK is therefore much better defined and more beneficial to the media in some respects, for example in relation to protection of journalists' sources, than Irish law. Even so, a decision under the Act in relation to journalists' sources has also been successfully challenged before the European Court of Human Rights in Goodwin v UK (1995).
The Strasbourg route is not a panacea for all ills, but when all else fails and the legislature procrastinates, it does provide an external forum and catalyst for change. It is to be hoped that the Irish legislature will take up the challenge laid down by the Supreme Court and act without delay to address the problems posed by contempt of court law.
Marie McGonagle lectures in law at NUI Galway and specialises in media law
