Script supplied by Mr Justice Adrian Hardiman

 

The following is the script supplied by Mr Justice Adrian Hardiman:

For many years now there have been close links between the legal profession and the world of journalism. Many people who have gone on to a distinguished career in the law have had their first work experience in journalism and by the same token many established journalists have gone on to distinguished legal careers. One thinks of the former Chief Justice Ó Dálaigh, of my great and good friend Hugh O’Flaherty and, in more recent times, of Michael O’Higgins S.C. who I am sure many of you knew in his earlier incarnation as a journalist. Other examples could be given.

One would think that this long connection would lead to a spirit of amity and co-operation. But I do not think that is so. Indeed, if I am to be honest I must say that from my own point of view I often feel the sentiments of suspicion and grievance. This should not be so and I am here to say, in the words of Rogers and Hammerstein, in Oklahoma, that:

“The farmer and the cowman should be friends”.

Even to say this, of course, suggests that the relations which exist at present could be better and I would like to explore why this is so.

The Courts are the only one of the three branches of government, the Legislative, the Executive and the Judicial which is able to perform its functions almost entirely in public. Moreover, the Superior Courts do nothing of significance without providing a written statement of the reasons for doing it. These aspects of the judiciary might be thought to commend themselves to journalists whose concern it is to inform the public. But most unfortunately, as I see it, they have not led to any significant improvement in media coverage of the Courts.

It is, of course, absolutely essential that justice should be done and should be seen to be done. This involves a clear, accessible, intellectually rigorous and consistent administration of justice. A jurisdiction without constant, rational and clear exposition of the principles upon which it is based is a jurisdiction which would become opaque in its working, inaccessible to the man in the street and will therefore acquire a reputation for being unpredictable and hardly subjective.

The responsibility for ensuring that the administration of justice possesses these qualities is a shared one. Certainly, judgments of the Courts must be clear, accessible, intellectually rigorous and consistent. But that is not enough in itself. They must be properly presented to the public by the judges but also by commentators in the media who will be the sole source of information for 90% or more of the citizens. If this is not done, the result will be distortion.

There are, it seems to me, two reasons for what I see as the inadequate and uninformative reporting of the Courts. The first is an unwillingness to come to grips with detail. Not surprisingly, the result of a court case often depends on matters of detail. A witness will often omit to present the vital detail of his evidence in its forefront, or to emphasise it particularly. Often the vital detail will be buried in a mass of other material, be presented out of sequence or perhaps only emerge in the course of painstaking cross-examination. All too often details of this sort are simply missed by journalists covering a case with the result that the verdict is presented quite outside the context of the evidence that led to it and thereby appears rather inexplicable, when no adequate attempt is made to explain it.

Just as the conduct of Court proceedings is a matter of importance rightly entrusted to skilled professionals, so the proper reportage of cases in which there is a major public interest is a task for a skilled professional. Such a person must be patient enough to listen to all the evidence and skilful enough to pick out the vital piece of evidence, vital perhaps because it contradicts something which was said days or even weeks earlier by some other person. This, I regret to say, is not often found, whether because of a lack of resources or for some other reason.

The other deficiency to which I would draw attention is the fact that, in reading a report of court proceedings, one can generally glean the result of the case, but rarely indeed any sense of the process which led to the result. Indeed, even the result and its significance is often distorted as the reporter or some editor focuses on some incidental but picturesque detail, or on the need for a headline.

Some time ago a court gave a decision favourable to a defendant in a drunken driving case. The case turned on its own facts - it was not a test case nor a case which would open the floodgates and the judgments said so in unmistakable terms. The defendant’s Solicitor, interviewed on the radio, also said so with unmistakable terms and did his best to explain peculiar factual aspects which had led to the case going to the Supreme Court. This was brushed aside by the man in the Seán O’Rourke role who asked the Solicitor how many drunken driving cases were pending before the Courts and went on to suggest that all of those cases might now collapse.

A good deal of the time of any judge in the Superior Courts is spent after court hours, writing the judgments whose scope and detail can be seen from the collected volumes of the Irish Reports. Many years ago one of my predecessors, the late Mr. Justice McCarthy, wrote an article in which he raised the question “Who do we write the judgments for?”. Until recently I would have thought the answer obvious, we write the judgments for the public so that they, advised by the media, can see that the system of administration of justice is a logical, rigorous developing and humane one. I have to confess to my great disappointment that this can no longer be said because many organs of the media, including some of the most important, are unable or unwilling to engage in the process at all.

This is not so in all legal systems: the United States Supreme Court, amongst many other signal advantages, has a highly professional and specialised Supreme Court press corps, just as there is a specialised corps to cover the Senate and certain specialised agencies. This dedicated body produces clear and coherent accounts of all that Court’s judgments. It is notable that a judgment attracting the applause of the Liberals, such as the Guantanamo Bay habeas corpus cases was nonetheless perfectly explained and placed in its legal context even in the right wing papers, although their editorial pages might attack the judgments very seriously. And vice versa with judgments palatable to Conservatives.

This is achieved, in the case of United States Supreme Court, by the maintenance by the media of a very highly skilled body of journalists whose members are generally qualified and often experienced lawyers. I thought with some envy of this when I read, in a leading Irish newspaper of great self esteem, and in the context of a notorious criminal case which ended in acquittal on the main charges, the bald statement that the presumption of innocence applied, in Europe, only in Ireland and England, and did not apply in the civil law countries.

All this is particularly disappointing because it takes place at a time when many other areas of life covered by journalists have been thought to require highly specialised journalists. A number of papers have a journalist who is a doctor to cover medical matters, economists to cover the financial crisis and so on. The Paper of Record employed a retired Colonel as its military correspondent and its weather column, written by a professional meteorologist became famous as a piece of highly profession exposition which was perfectly comprehensible to the man in the street. In the same way science is covered by an academic scientist and sports, not excluding dog racing and computer games by highly competent people. It is no exaggeration to say that legal reporting in Ireland has yet to find its Des Cahill or Joshua Rosenberg. One is not entitled to require media coverage, but if it occurs, it should surely be of reasonable standard.

Having regard to the festive and congratulatory nature of this event, I think I may perhaps owe an apology to its organiser, Mr. Ken Murphy, for making it the occasion for these critical remarks. But I did inform him, when asked to address this occasion, that I would be somewhat tart on the subject: I have indeed been expressing these criticisms in one form or another since 2002. I am sure that the media, which so trenchantly insists on its constitutional right to be critical of others, will not object to the occasional critique of itself.