Sub Judice

UrbanFox

Does the sub judice rule apply to criminal cases under appeal ?

I have an idea at the back of my mind that the CCA or the SC said that it did but I cannot find an authority on it . It might just have been a comment made obiter but I thought that the view was expressed that judges of appeal can be influenced too by publicly published material.

Imagine what might happen with Joe O'Reilly's case if he appeals and his conviction is overturned. Could you safely order a retrial for him even allowing for the "fade factor" given the volumes and nature of the stuff printed and broadcast about him and the case.

Tom Young

Sub Judice means under judicial consideration or not yet decided. Generally media comment on cases sub judice is prohibited. This is because the jury should only reach verdict by virtue of envidence admitted in/during trial See. In re MM and HM [1933] IR 299 or Kelly v. O'Neill [2000] 1 ILRM 507, per Denham J. Irish Times published details of previous convictions which has not featured in the trial.

Test as laid out by Keane CJ:
'[c]ontempt of court is committed ...when a person publishes material which is calculated to interfere with the course of justice; it is not a necessary ingredient of the offence that it results in such an interference' it goes on ....

Issue of Sub Judice under appeal was covered off in Cullen v. Tobin [1984] ILRM 577. Plaintiff convicted with murder and malicious damage in the Central Criminal Court. Pending his appeal to the Court of Criminal Appeal, his alleged accomplice agreed with the defendants to publish an account of her relationship with the plaintiff, including the events that were the subject of his trial. An injunction restraining publication was discharged by the SC because per O'Higgins CJ: The Court of Criminal Appeal will be asked to consider pure questions of law relative to the appeal. It cannot be suggested that in considering such questions, publication of this or any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments.

In Kelly v. O'Neill, Denham J. recognises the fundamental balance between Freedom of Expression and the administration of justice. Stating that FOE is not an absolute right under the constitution. The case of Sunday Time v. UK and discussions on the ECHR Article 10 are worth a gander.

I think that wont arise.

UrbanFox

Very good Tom.

Thanks.

Gobán Saor

Yes, criminal contempt of court applies during the period after an accused is charged and before sentence is pronounced. It does not apply to appeals but would obviously apply to a retrial.

UrbanFox

Gob&#225 wrote: »

Yes, criminal contempt of court applies during the period after an accused is charged and before sentence is pronounced. It does not apply to appeals but would obviously apply to a retrial.

Interesting.

Since posting I see that Joe O'Reilly is making application to the CCA. If his conviction is overturned I suppose that there will be one hell of an argument about the fade factor if a retrial is ordered.

If conviction is overturned and retrial ordered what kind of time period would constitute an adequate fade factor ?