Justice system must move with the multimedia times
The courts must adapt to the new reality, which is that there is no such thing as an ‘unprejudiced’ jury any more
When Judge Kevin Haugh decided that Haughey could not be tried and when the High Court supported that finding, social media, as we know them, had not been invented. There were no smartphones capable of sending or receiving emails. The judges themselves had no email. Personal blogging was confined to a minority of tech-savvy geeks in Silicon Valley.
It was still just about possible for judges and lawyers to imagine that the courts could operate within some sort of cordon sanitaire, in which jurors and witnesses would emerge from isolation to discharge their civic duty in the courtroom.
It certainly is not like that now. The proximate reason why Haugh decided that the former taoiseach could not get a fair trial was that tánaiste Mary Harney had said, not wholly unreasonably, in a radio interview that he should be in prison. It was likely even then that the great majority of people – potential jurors – would have put that down to political rhetoric, albeit emanating from beliefs sincerely held. But to lawyers and judges of Haugh’s vintage it would have seemed an appalling breach of the courts’ prerogatives and the rights of an accused person.
Notwithstanding, it is worth revisiting what Haugh and the High Court had to say at the time. Haugh acknowledged that it should be possible, to some considerable degree, successfully to instruct jurors to set aside any bias or preconception. And he wondered – rather imaginatively – if some screening of jurors by way of questionnaire might address the problem. The High Court decision, in turn, left open the possibility that a safe trial might be run with the passage of time.
It would be good to think that the judges might have moved on from 2000; that they have embraced the reality that the world does not come to a silent standstill while they do their work in the courtroom. Twenty-first-century society – the individual, the elected representative or the media – cannot be enjoined to monastic silence in the face of social and economic catastrophe in order to have the justice system do its job.
That system has to adapt, to learn to discharge its responsibilities in a world of instant and total connectivity. The legal practitioners have to find ways of making their institutions work, even while the mob is howling outside and the newspapers and bloggers are engaged in what was once viewed as foul contempt.
Courts in other common law countries have succeeded in dealing with defendants like Ernest Saunders, Ivan Boesky, Leona Helmsley, Conrad Black and many more, in veritable maelstroms of public and media comment. It cannot be right that judges or lawyers claim they are prevented from doing their job because people want answers to questions about the impoverishing of their country and the jeopardising of their children’s future.
Conor Brady is a former editor of The Irish Times