Irish justice must retreat from secrecy - while avoiding US circus

Between farce of OJ and Irish dumb show, there has to be a happy medium

JUSTITIA, a handsome though forbidding lady, is the Roman goddess of justice, and is usually depicted with a sword, a scale and, most important, a blindfold. Her sword divides truth from untruth, her scale weighs the evidence, and her blindfold preserves her impartiality.

Most western countries honour this principle of blind justice. But, as we’ve seen this week – and not for the first time – there are great differences of opinion internationally as to whether or not justice should be not only blind but also invisible.

US prosecutors this week released a dossier of evidence to show why they’ve charged Molly Martens and her father Thomas with the second-degree murder of Jason Corbett in North Carolina last August.

We’ve seen affidavits from investigators, court records, the transcript of the 911 call from Thomas Martens on the day Jason Corbett died, and autopsy findings. There is so much evidence for the media to pore over, in fact, that there’s scarcely any point in bothering with supposition.

Contrast that with the practice here, where the pre-trial process is veiled in mystery and where, consequently, rumours often flourish.

Anyone who’s worked as a reporter in Ireland will tell you how difficult it can be to get information from the gardaí. If you know the facts, you may be able to get the Garda Press Office to confirm them, but if you don’t know, they as often as not won’t tell you.

Clearly there are some very good reasons for this ‘discretion’. Firstly the gardaí don’t want to hamper their own investigations by publicising information that could tip off a suspect. Secondly, the suspect is entitled to a presumption of innocence, and his or her good name is protected by Article 40 of the Constitution. And thirdly, there is the risk of contaminating the jury pool.

However, it appears that in Ireland there is also, simply put, a culture of secrecy – in An Garda Síochána, in the office of the DPP, among judges, and in the Department of Justice itself.

Since the Garda Síochána Act of 2005, it has been illegal for gardaí to reveal details of a case to the press. The National Union of Journalists at the time strongly objected to the provision.

However, it hasn’t made all that much practical difference because, as always, information is leaked to those journalists who have built their reputations on cosying up to members of the force.

Chief Justice Susan Denham last year called on gardaí to put a stop to these unauthorised leaks to the media.

‘Information about a criminal investigation in the possession of a member of An Garda Síochána is not his or her personal property to share or otherwise dispose of at his or her personal discretion,’ she said.

‘If the gardaí decide, as an institution, to publicise certain information, on the authority of a senior officer, that is a different matter,’ she added – an altogether very helpful suggestion which might help both to control the flow of misinformation, and put an end to the unsavoury practice of certain journalists doing the gardaí’s work for them.

HIGHER up the judicial food chain, the Office of the Director of Public Prosecutions has long appeared to operate on the principle that justice should be dumb as well as blind. Until quite recently, the DPP could elect not to prosecute a case without telling even the victims the reason for the decision.

You could be raped or stabbed and never have the foggiest idea why the person you accused of the crime never had to appear in court.

By the same token, you might be suspected of a crime and not prosecuted for it, but because you had no entitlement to find out why not, you might never get the chance to clear your name.

After a three-year consultation process, former DPP James Hamilton changed this in 2008 to bring it closer into line with the UK, Australia and Canada, so that in cases where there had been a death, the relatives of victims were entitled to be told why there was no prosecution. As of last November this has been extended to all cases – but still only to the victims, and only if they apply in writing within 28 days.

While mulling over the change, Mr Hamilton got into the minds of the multitudes beyond his office walls.

‘I very much think that if I were in the position of being a victim of a crime, I would like to get as much information as I could,’ he said at a seminar in Dublin Castle on the subject in 2008.

But of course justice is – rightly – not administered on behalf of the victims of crime, it’s administered on behalf of society as a whole. So while the inclusion of victims and family members is a welcome development, there is some incongruity in the fact that the information is still never disclosed to the public in any circumstances.

Judges, too, are not obliged to explain their decisions, so that the community at large is often puzzled, to say the least, as to why one person gets a suspended sentence and another ends up behind bars for the same offence.

Meanwhile, at the highest administrative level of justice in the land, there’s a ‘closed, secretive and silo-driven culture’, according to last year’s report of the independent review group on the Department of Justice.

It said there were ‘inadequate constructive relationships or interactions with the media’ and a need for ‘greater openness and transparency’.

The US judicial system, by contrast, takes very seriously the obligation to keep the public informed, even before a jury is ever sworn in, to ‘promote accountability and transparency’. The National District Attorneys Association code of conduct encourages prosecutors to reveal enough information to assure the public that ‘community safety is being maintained and that the criminal justice system is operating properly’.

JUDGING by the sheer volume of information released in reference to the case against Molly and Thomas Martens, US prosecutors are not concerned about ‘trial by media’. Perhaps they consider that the evidence a potential jury will have seen this week is much the same as the evidence they will see after they’re sworn in, so they are unlikely to be in some way prejudiced by it.

Having said that, it’s true that, by Irish lights at least, the American justice system can sometimes look no better than a circus.

Everyone hooked on the extraordinary Netflix documentary, Making A Murderer, will have gleaned an insight into just how bizarre the ‘transparency’ of the press conferences and interviews given by law enforcement officers and prosecutors can get.

Nobody can think of US justice without calling to mind the spectacle that was the OJ Simpson trial.

But between the American circus and the Irish dumb show there must surely be a happy middle ground, in which justice can not only be done but – with the consequent safeguard for victims, accused and public alike – also be seen to be done.