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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. •