A judge has said that existing contempt of court laws are hopelessly inadequate in curbing social media commentary which has the potential to interfere with ongoing trials.
Judge Melanie Greally also said that there was no right for anyone to express themselves over social media in relation to an ongoing trial in a manner which may influence that trial.
She was speaking during a hearing at Dublin Circuit Criminal Court Friday in advance of the upcoming trial of six people charged with offences arising from a water charges protest in Jobstown, Tallaght. The trial is scheduled to start on October 3rd.
Former tánaiste Joan Burton and her advisor Karen O'Connell had left a graduation event at An Cosán Education Centre at Jobstown, south Dublin on November 15th, 2014, when a demonstration was held which delayed them for about three hours.
A number of defendants face charges of violent disorder and of falsely imprisoning the two women arising out of the incident.
Judge Greally said her concerns arose from her experience during the first trial. She said that at an advanced stage in the trial, a comment on social media could have collapsed the trial if it hadn’t been quickly removed.
The judge had proposed imposing an extra bail condition on the six defendants that would prevent them from making any comment on social media intended to have an influence on the outcome of the upcoming trial.
Lawyers for some of the accused said that the proposal was a misuse of power and would strike at the constitutional right of freedom of expression.
After listening to defence submissions, Judge Greally decided bail conditions did not need to be altered because anyone engaging in commentary or campaigns calculated to influence the outcome of a trial would be in breach of the usual condition to keep the peace and be of good behaviour.
Contempt of court
She said she wanted to remind all defendants that any such behaviour would be evidence of criminal conduct in the crime of contempt.
The judge also issued a warning to others including “mainstream media” about the dangers of commenting on the Jobstown case and “lumping” the forthcoming defendants with those involved in the previous trial.
Her warning came after defence lawyers said "outrageous" comments had been made by the journalist Paul Williams on Newstalk radio recently. The court heard the DPP was considering what action to take in relation to the broadcast.
Judge Greally said they were at a very sensitive stage in the immediate run-up to the next trials. She said the accused were entitled to a fair trial to be decided on the evidence in the case and commentary threatening the viability of the trial would jeopardise those cases going ahead as planned.
Lawyers for the defendants objected to bail conditions being altered to include a ban on social media comment.
Giollaiosa O’Lidheadha SC said the court already had a mechanism to deal with the issue by way of contempt of court proceedings.
He said that the hearing on Friday would serve as a powerful reminder to anyone considering stepping over the line from freedom of expression into actually interfering with the process of the court and into criminal conduct and contempt.
Judge Greally responded by saying that contempt of court has proven itself to be "hopelessly inadequate" in curbing social media comment. She said this had resulted in recent expressions of the need for reform of the laws from the outgoing Chief Justice Susan Denham.
She said in the meantime, the courts were going to have to take more extreme measures. She said the proposed bail condition was a very modest approach for the benefit of all defendants as it ensured their trial was not interfered with.
Mr O’Lidheadha replied that it was not a modest proposal. He said it struck at the heart of a number of constitutional rights, including the right to public freedom of expression and the right to access to courts.
He said that there was no law preventing an accused from publicly reporting on events in open court in order to ensure there is fair and accurate reporting of what happened in the court.
‘Mainstream media’
“The public only gets to know what the mainstream media decides what gets to be broadcast. There is a legitimate and important question about rights of access to court,” he said.
He said there was also a constitutional right to campaign on matters even though they may be connected to matters on trial.
Padraig Dwyer SC told the court that there was no restriction in law inhibiting a person from commenting on their plea of innocence in advance of a trial.
Judge Greally agreed that defendants were entitled to “shout from the rooftops to protest their innocence” but could not make comments clearly intended to influence the trial outcome.
Referring to the comments on Newstalk she said: “I am very much aware of all the commentary in all of the other forum, in other mediums, all of which is hugely unhelpful.”
Prosecuting counsel Tony McGillicuddy BL said there was a “curious” distinction being put forward by the defence about a right to “report” on a trial. He said it was hard to see how someone involved in a trial could do so as to do so they would be expressing an opinion in some manner.
He said there was a hierarchy of rights and the right to a fair trial comes first. He said the right to a fair trial applied to both sides and “not to just one side”.