The Gazette 1983

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 77. No. 1. JANUARY/FEBRUARY 1983 The Right to Know

T here are few less edifying sights than that of the mass-circulation newspapers adopting-a holier- than-thou attitude in the cause of the public's right to know. The collapse, after only two days, of the recent MacArthur trial must have come as a grevious blow to those newspapers who, at a time of increasing competition for sales and advertising, must have had hopes that a lengthy trial would have yielded a harvest of copy to boost flagging circulation. Nonetheless, the point raised by the Press as to what details, if any, of the prosecution's case should be disclosed to the Court, where the Judge has no discretion as to the penalty which he can impose, is worthy of consideration; unfortunately, the level of contribution to the discussion, including at least one contribution from a prominent academic, has not been particularly high. Our legislators have, for their own reasons, decided that on a jury bringing in a verdict of guilty of murder, a Judge will have no discretion to impose any sentence other than that of life imprisonment. He cannot, therefore, consider submissions about the accused's previous good character, family background, economic circumstances or, indeed, past convictions. If a Judge is not permitted to take any of these matters into consideration, then, as far as the Court is concerned, there is no point in the submissions being made. In passing, it may be said that to restrict a Judge to a mandatory sentence in cases of this sort must be undesirable. The knowledge that a verdict of murder will bring a sentence of life imprisonment may well have almost as great an effect on a jury as, in the past, a knowledge that such a verdict could result in the imposition of the death penalty. Such knowledge must render it likely that, save in the gravest of circumstances, a jury will find a manslaughter verdict an attractive alternative. It must also put considerable pressure on defence lawyers to try to persuade the prosecution to accept a plea of guilty of manslaughter, rather than risk a

conviction for murder if the trial proceeds. While this is not "plea bargaining", since it does not involve the participation of the Judge, it is suggested that negotiations leading to the acceptance of a plea to the lesser offence in such cases may be more open to criticism than in a lower Court, dealing with minor offences. Several aspects of the MacArthur case call for comment. Is it appropriate that the contents of state- ments apparently made to the Garda Siochana, which have not been disclosed in open Court, should be divulged by the Gardai to the media? Whatever remote justification there arguably may be for disclosing the contents of a statement where the accused has pleaded guilty and been sentenced — and it is not clear that there is any — it is a most dan- gerous precedent. Is it impossible that the contents of a statement made by one who has not been convicted could be made public? Most cases of murder in Ireland are saddening rather than titillating. It must be very doubtful whether the victim's families would wish to have more than minimal attention given in the media to the details of the crime or the character or personality of the victim. If the accused, having had the advice of experienced lawyers, decides to plead guilty then, in the great majority of cases, there is nothing to be said for any unnecessary exposition of the evidence which would have been offered by the Prosecution. The most unusual and newsworthy feature of the MacArthur case was the location of the arrest of the accused. Accepting for the purpose of argument that this circumstance, or the widespread rumours in circulation about the various people involved (or, indeed, not involved) in the case, justified the great attention which was given to the case in the media and that a greater disclosure in Court o f the prosecution's case would have been justified to allay public suspicions, would this justify the introduction of a general rule that a full disclosure of the prosecution's case should be made in all cases? We think not. •