PANORAMA RIGHT ON MARK
Panorama right on mark
By WALTER GREENWOOD
Sunday Life legal expert
CRITICISM of the Panorama programme appears to have neither law nor logic on its side.
Much as one feels for Lawrence Rush and his family in their anguish and concern that the murderers of Mrs Rush should be brought to justice, it is difficult to see any good reason why BBC should not have named the suspects.
The programme did not actually say the men were guilty (that is for any court hearing to decide).
It may yet assist in bringing to trial those guilty at Omagh.
As to the law, special procedure for terrorist offences both in the Republic and in Northern Ireland requires that any trial in Dublin or Ulster will take place before a judge sitting alone - there will be no jury to be prejudiced.
Traditionally, judges have taken the view that the need to prevent prejudicial publicity exists only where decisions are taken by laymen and women as in a jury. As a former distinguished British judge, Lord Salmon, put it: "I am satisfied that no judge would be influenced in his judgement by what may be said by the media. "If he were, he would not be fit to be a judge."
United Kingdom law also does not usually recognise any real danger of prejudice to a fair trial until the legal process has started and the three men named in the programme have not been arrested. They may never be arrested.
The Contempt of Court Act 1981 says that no one is strictly liable for prejudicial publication unless there has been an arrest, a warrant for an arrest, a summons or a charge, whichever comes first. The Act also requires that a newspaper article or a broadcast must create a substantial risk of serious prejudice before there can be a contempt of court. It would seem impossible for such a risk to occur when a judge alone is trying a case. As was pointed out in the hearing before Mr Justice Kerr, the European Convention on Human Rights - now part of UK law - lays emphasis in Article 10 on freedom of expression and the right to impart information.
The judge was surely right when faced with such a dubious argument that the men, if ever arrested, could not get a fair trial to say that Article 10 must prevail."
By WALTER GREENWOOD
Sunday Life legal expert
CRITICISM of the Panorama programme appears to have neither law nor logic on its side.
Much as one feels for Lawrence Rush and his family in their anguish and concern that the murderers of Mrs Rush should be brought to justice, it is difficult to see any good reason why BBC should not have named the suspects.
The programme did not actually say the men were guilty (that is for any court hearing to decide).
It may yet assist in bringing to trial those guilty at Omagh.
As to the law, special procedure for terrorist offences both in the Republic and in Northern Ireland requires that any trial in Dublin or Ulster will take place before a judge sitting alone - there will be no jury to be prejudiced.
Traditionally, judges have taken the view that the need to prevent prejudicial publicity exists only where decisions are taken by laymen and women as in a jury. As a former distinguished British judge, Lord Salmon, put it: "I am satisfied that no judge would be influenced in his judgement by what may be said by the media. "If he were, he would not be fit to be a judge."
United Kingdom law also does not usually recognise any real danger of prejudice to a fair trial until the legal process has started and the three men named in the programme have not been arrested. They may never be arrested.
The Contempt of Court Act 1981 says that no one is strictly liable for prejudicial publication unless there has been an arrest, a warrant for an arrest, a summons or a charge, whichever comes first. The Act also requires that a newspaper article or a broadcast must create a substantial risk of serious prejudice before there can be a contempt of court. It would seem impossible for such a risk to occur when a judge alone is trying a case. As was pointed out in the hearing before Mr Justice Kerr, the European Convention on Human Rights - now part of UK law - lays emphasis in Article 10 on freedom of expression and the right to impart information.
The judge was surely right when faced with such a dubious argument that the men, if ever arrested, could not get a fair trial to say that Article 10 must prevail."
Further Information
Publisher: SUNDAY LIFE
Ref: SL/110
Published Date: 15-Oct-00
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