A Circuit Court judge has said contempt of court laws are hopelessly inadequate to curb comment on social media, which has the potential to interfere with the integrity of trials.
Judge Melanie Greally made her remarks during a pre-trial hearing concerning the bail conditions of a number of people charged in connection with the Jobstown water charges protest who are due to go on trial in October and April next.
The judge had considered changing the bail conditions of the next group of Jobstown defendants to ensure there was no comment on social media which could compromise a trial or seek to influence the outcome.
However, she decided bail conditions did not need to be altered because anyone engaging in commentary on social media or engaging in campaigns intended or calculated to influence the outcome of the trial would be a breach of the usual condition of bail to keep the peace and be of good behaviour.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
She said she wanted to remind all defendants that any such behaviour would be evidence of criminal conduct in the crime of contempt.
The judge also issued a stark warning to others, including mainstream media, about the dangers of commenting on the Jobstown case and "lumping" the forthcoming defendants with those involved in the previous trial.
Her warning came after defence lawyers said "outrageous" comments had been made by journalist Paul Williams on Newstalk recently.
The court heard the DPP was considering what action to take in relation to the broadcast.
Judge Greally said they were at a very sensitive stage in the immediate run up to the next trials.
She said the accused were entitled to a fair trial to be decided on the evidence in the case and commentary threatening the viability of the trial would jeopardise those cases going ahead as planned, she said.
Lawyers for the defendants objected to bail conditions being altered to include a ban on social media commentary.
They said using bail conditions for this purpose was the wrong mechanism and said the rules governing contempt of court were sufficient to deal with any interference with the court process.
Defence counsel Giollaíosa Ó Lideadha said today's hearing "serves as a very powerful reminder to those who seek to step over the line from a position of freedom of expression into the area of actually interfering with the process of the court is stepping over the line of criminal conduct and contempt."
He said all courts have an inherent jurisdiction to protect the integrity of the court process but it can be achieved by a clear and unambiguous statement that communications in public which step over the line of freedom of expression and amount to an interference with the trial may be the subject of serious criminal proceedings for contempt of court.
He said there were a range of mechanisms open to the court to deal with such breaches including up to life in prison.
However, Judge Melanie Greally said the contempt of court laws were "hopelessly inadequate to curb comment on social media".
This was obvious from recent comments from the outgoing Chief Justice Susan Denham about the need for reform in the area of social media and the courts.
Judge Greally said her proposal to impose restrictions on public comment as a condition of bail was a precautionary condition seeking to prevent the trial from being in any way compromised.
Her concerns were prompted by the previous Jobstown trial during which comments were made on social media and could have collapsed the trial at a very late stage had they not been taken down.
She said the previous trial had demonstrated "a very pressing need for the social media commentary surrounding this case to be controlled".
She said there was no right for anyone to express themselves on social media in relation to an ongoing trial.
Prosecuting counsel Tony McGillicuddy said there was a hierarchy of rights and the right to a fair trial comes first.
He said the right to a fair trial applied to both sides and "not to just one side of the house".
He said there was a "curious" distinction being put forward by the defence about a right to "report" on a trial.
He said it was hard to see how someone involved in a trial could do so as to do so they would be expressing an opinion in some manner.