Just a few weeks ago The Irish Times and other newspapers benefited from a Supreme Court judgment awarding them costs in a controversial case in which they had successfully asserted their constitutional right to report certain court proceedings, despite the ruling of the presiding judge.
Nobody who followed that case could have been under any illusion that an important precedent had been established in defence of the freedom of the press.
Ironically, this news was bracketed by the controversy surrounding the case of Nora Wall, whose conviction on a rape charge was quashed after a trial which had been extensively - indeed, sensationally - reported in all the media. There can have been few occasions in the past few decades in which the public mind-set, created in large part by those media reports and confirmed by the jury verdict and the trial judge's comments, has been so directly challenged.
At one level this is no more than the blunt and sometimes cumbersome working of a democratic system. Mistakes happen within institutions. With luck, other institutions exist to put these mistakes right. In their reporting of the Nora Wall case the media were simply doing their job: giving an accurate account of legal proceedings which were not only of interest to the public but of immense public interest. Not a word or a comma was printed which in any way overstepped the often strict boundaries governing what the media may or may not do in relation to our legal system.
Some time before the Court of Appeal quashed the Nora Wall verdict, in a lecture I raised some issues connected with the media reporting of court cases. That appeal decision suggests that we journalists should consider some trends which this and other recent cases have made evident.
The major trend, overall, is towards the sensationalisation of court proceedings, particularly those concerned with sexual crime, Within that trend there is another development: the practice of publishing ever larger and more dramatic photographs of defendants.
Taken individually, any of these developments might be defended simply on the grounds that it's a rough, tough world out there; competition, red in tooth and claw, means that the media are no place for the faint-hearted; and anyway, it's legal, isn't it? Taken collectively, however, these practices suggest another question, which can be posed equally bluntly: is the presumption of innocence a dead duck?
Let me take the question of photographs first. For quite some time this was a grey area, but more recently it has been established - not least by The Irish Times - that the publication of photographs of defendants did not of itself prejudice their right to a fair trial.
Common sense suggests that this is a reasonable view, but the way in which this newly confirmed freedom has been exercised, even though it is firmly within the law, suggests that the practice needs review.
In the tabloid press the relationship between photographs and text has always been inverse: it is a practice which is now spreading to the broadsheets.
The old adage that a picture is worth a thousand words is relevant here - all the more so when the picture, of a cowering (or defiant) defendant shackled publicly to a sturdy Garda wrist is set beside a mere few hundred words of aseptic court report. Long before the Nora Wall case there was an even more dramatic illustration of this, when a photograph of Brendan Smyth (admittedly after his conviction rather than before or during the proceedings) was shaded in the process of development or printing so that Smyth's face appeared surrounded by a sort of dark halo.
And this in turn prompts another question: to what extent are the gardai themselves - no slouches when it comes to fighting the public relations battles these days - cooperating in this process, perhaps even initiating it? It is difficult to imagine that photographs of citizens in handcuffs can be easily procured without the active goodwill of their captors. This is in marked contrast to the practice in Britain, where defendants (and indeed those who have been found guilty) are generally hurried into or out of courts with their faces covered, and sometimes spirited away from court back doors.
WHAT the current practice reminds me of most is the former practice in Britain, abandoned as barbaric many years ago, of putting miscreants in the stocks. The only difference is that in 18th-century Britain people were put in the stocks after they had been convicted, not before.
As a relatively new element in the complex business of court reporting, this cannot be considered in isolation. And the growing sensationalisation of court reporting, of which it is a part, in turn raises questions about the extent to which competition in the media is not only producing a general coarsening of public appetites, but may be unfair to individuals (although not illegal) and may actually - by concentrating on the often horrific actions of individuals - persuade us by implication that convicted criminals are all that we have to worry about, and can be banished to the wilderness with all the ills of our society conveniently heaped upon their backs.
Other cultures do things differently. In Sweden most run-of-the-mill court cases (i.e. those which are not of definite public interest) are never reported at all. It would be quite legal to report them, but Swedish journalists voluntarily ignore them, not least on the grounds that it makes rehabilitation more difficult.
In the Netherlands defendants in many cases are not identified other than by their initials unless and until they are found guilty. Even in Britain, where media culture is not noted for its reticence, the media voluntarily decided not to publish some of the more horrific evidence in the West case, evidence which they were legally entitled to publish.
In each of these jurisdictions the courts are open to the public, as are ours: but in some cases they recognise, quite properly, that media publication adds a new dimension to the necessarily public quality of the administration of justice, and that the difference is qualitative and not merely quantitative.
Media publication of court proceedings has always been a bit of a lottery. But does it have to be a lottery in which the odds are so dramatically stacked against the losers?
X's drunken driving conviction is bruited abroad; Y's is not. An evening paper can lead a page with the evidence for the prosecution in a criminal case; the following day, pressure on space can exclude the defence evidence and even a not-guilty verdict. The evidence of expert witnesses can be ignored or discounted if the reporter doesn't fully understand it.
Competition increasingly means that media compete, not in finding and publishing stories which other media have failed to unearth, but in the degree of sensationalism applied to the stories that everyone has. The "pool" system of court reporting, in addition, means that the decision about what is reported from our justice system, and how it is reported, tends to be made at the level of the court reporter rather than at the level of the editor.
All these issues and problems are interconnected, and it is important that they be addressed by journalists instead of by others. I am not suggesting for a moment that there should be new rules, regulations or laws to cover this difficult and often contested area: there are all too many of those as things stand.
But if we are to avoid the temptation to treat the administration of justice, in the end, as little more than an extension of the entertainment industry, we will have to recognise that the professional judgment of journalists is, in the last analysis, something which has to be strengthened and developed at every level rather than sacrificed heedlessly or helplessly to the tyranny of market forces.
John Horgan is Professor of Journalism at Dublin City University
It is Irish Times policy not to publish photographs of accused persons in handcuffs until and unless they are convicted. Ed. IT.