Use of justice system's most draconian sanctions against wholly innocent man raises serious questions, writes JOHN WATERS
THREE WEEKS ago, an Irishman who spent a year in an Irish prison was released on appeal by the Supreme Court.
At the core of the dispute which led to his imprisonment was the Judicial Separation Act, 1989, which he alleged is being wrongly applied by family law courts. He claims that custom and practice has developed contrary to both the spirit and letter of the legislation, as well as the intentions of the Oireachtas, with the effect of providing separation on demand.
His was not an academic argument. His wife had applied to court for a separation order and arising from this application he had received a summons.
Studying the legislation, he came to the conclusion that, if he entered an appearance, he would ipso facto be asking the court to make a decision concerning his marriage. Since he did not want to end his marriage, he decided that the best option was to decline to make an appearance. He believed that, as long as he remained open to reconciliation, the law did not permit the court to interfere in his marriage on his wife’s unilateral demand.
Several times he asked the court to provide proof of its jurisdiction, but the court did not respond. In July 2009 he was arrested, brought before a judge and jailed for contempt.
This case has many disquieting aspects. One, for example, centres on a habeas corpus application by this man in late July 2009, held after the court had been cleared. A habeas corpus hearing held in secret appears, on the face of it, to be a contradiction in terms.
By ordering this man’s release, the Supreme Court has seemed to confirm that he was unjustly imprisoned. Indeed, since his appeal has been upheld (although no written judgment has been published) it is reasonable to infer that the Supreme Court has agreed, at least broadly, with his interpretation of the law in the case before it. The implications of this are staggering. It means, of course, that a massive injustice has been perpetrated.
All this raises very serious questions about the manner in which one of the justice system’s most draconian sanctions came to be used against a wholly innocent man. But perhaps even more worrying questions relate to the role, or non-role, of the media.
In September 2009, I attempted to publish an account of this disturbing case, but that column was spiked on legal advice. Newspapers, of course, are obliged to obey the law and need to protect themselves from legal jeopardy. But the press is supposed to be the “fourth estate”, the ultimate bulwark in a complex system of protections intended to shield the fragile corpus of democratic freedoms.
When the media opts out of a particular context on the basis that the law does not permit it to do its job, where do citizens go for protection in the event of error or abuse? Are we journalists simply to shrug our shoulders in the face of injustice and get on with filling space?
What have we to say to the public – that the law is the law and that’s the end of it? What when Justice nods off, when the law becomes an ass?
If the media cannot or will not raise these questions, who will? How do we propose to protect our democracy if such questions are suppressed? And what does this leave as the point of journalism, other than as a branch of showbiz?
Last week I was again prevented, on legal advice obtained by the editors of this newspaper, from writing about another deeply disturbing case in which the child of an Irish mother was forcibly returned to England, likely to the fate of forced adoption, following hearings in the High Court and Supreme Court. This case has the gravest imaginable implications for some of the most basic human freedoms, but the public has been permitted to know almost nothing about it because of a law intended for the protection of families and children.
In the neighbouring jurisdiction of England and Wales, which imposes similar reporting restrictions on matters pertaining to family law proceedings, a former senior family court judge has repeatedly described these circumstances as “indefensible”.
Delivering the 2010 Hershman-Levy Memorial Lecture in Birmingham last month, Lord Justice Munby, now sitting on the court of appeal, identified a distinction between family law matters which are the business of nobody beyond the immediate protagonists, and the growing phenomenon of state agencies “seeking to intrude into family life and very frequently seeking to remove children from their families”.
Where the state is pursuing such drastic powers as are implied by care and placement orders, he said, “it might be thought that the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling.
“I have previously said in public that, viewed from this perspective, our present system is indefensible. I do not shrink from repeating that.”