Byrne v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 11 November 2010
• Neutral Citation: [2010] IEHC 382
• Court: High Court
• Docket Number: [2009 No. 1283 JR]
• Date: 11 November 2010

[2010] IEHC 382

THE HIGH COURT

[No. 1283 JR/2009]

Byrne v DPP

BETWEEN

NIALL BYRNE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL PROCEDURE ACT 1967 S4(J)

CONSTITUTION ART 38

RATTIGAN v DPP 2008 4 IR 639

CONSTITUTION ART 34.1

DPP v MURPHY UNREP CCA 21.1.2005 2005/21/4292 2005 IECCA 1

LAW REFORM COMMISSION PAPER ON JURY SERVICE LRC CP61-2010 DUBLIN 2010

NORRIS v AG 1984 IR 36

NEW ZEALAND LAW COMMISSION, JURIES IN CRIMINAL TRIALS NZLC 9932

NEW ZEALAND LAW COMMISSION, JURIES IN CRIMINAL TRIALS NZLC 9932 PAR 7.57 VOL 2 PART 2

BELL HOW TO PRESERVE THE INTEGRITY OF JURY TRIALS IN A MASS MEDIA AGE 2005

SEXUAL ABUSE & VIOLENCE IN IRELAND LIFFEY PRESS 2002

DPP v NORRIS UNREP FINNEGAN 2.4.2009 2009/18/4329 2009 IECCA 27

CRIMINAL LAW

Trial

Publicity - Fair trial - Internet publicity - Jury - Access to internet - Whether right to demand sweeping and cleansing of internet of prejudicial material prior to re-trial - Test in relation to adverse pre-trial publicity - Nature of publicity - Whether real risk of unfair trial - Access to internet by juries - Responsibility of Director of Public Prosecutions - Warnings and directions to juries - Rattigan v. Director of Public Prosecutions [2008] IESC 34, [2008] 4 IR 639 considered - Relief refused (2009/1283JR - Charleton J - 11/11/2010) [2010] IEHC 382

Byrne v DPP

Facts: The applicant had been charged with various offences of kidnapping and robbery, along with others, some of whom were convicted by a jury. Substantial publicity had surrounded the trial and sentencing. The applicant sought various declaratory reliefs including that the internet be "wiped clean"? of publicity or comments about charges being faced by the applicant. He asserted that an accused had a right to demand that the Director of Public Prosecutions should search the internet in order to find materials that might be regarded as prejudicial to the prospect of a fair trial.

Held by Charleton J. in refusing the application that it was no part of the function of the Director to surf the internet and find and attempt to deal with any observations concerning the accused facing a criminal trial. Juries could be trusted to act judicially. Pre-trial publicity had to involve a statement or necessary implication that an accused facing a criminal trial was guilty of an offence with which he was charged. The material in the case came nowhere towards meeting that test. No one in the media had suggested or implied that the accused was either guilty or innocent. There was no risk of an unfair trial.

Reporter: E.F.

1 1. The various declaratory reliefs sought by the applicant can be condensed to this: Niall Byrne wants the internet wiped clean of any publicity or comment about the charges which he faces or the conduct of a previous trial where the jury failed to agree a verdict against him or in his favour. He asserts that an accused person has the right to demand that the Director of Public Prosecutions should search the internet in order to find any sites containing material that might be regarded as prejudicial to the prospect of a fair trial. Thereafter, it is argued, the Director of Public Prosecutions should write to the relevant internet service providers and demand that any offending material should be taken down. In the event of non-compliance, an application should be made to court in that regard. The danger otherwise faced by the applicant, it is argued, is that jury members will conduct their own researches during the course of the applicant's forthcoming trial, find some of the material complained of and reach conclusions prejudicial to the case he may be asserting at the trial. The applicant is twenty-six years old and previously worked for Securicor. He has no previous convictions and therefore, apart from an entitlement to challenge any prosecution evidence, and to give positive evidence himself explaining any adverse case that might be brought against him, he is also entitled to rely on his character as being one that would be unlikely to be involved in the offences charged, and to call witnesses in that respect.

Chronology

2 2. The applicant is charged with various offences of kidnapping and robbery arising out of a kidnapping and robbery on 13 ^th and 14 ^th March 2005. The circumstances of the crimes were horrible. That, however, in no way suggests that any particular person, much less the accused, was involved in them. A fellow employee of Securicor came home after a day of work and, on opening the door, found his wife and child trussed up. Armed raiders were at hand. They brought him from his house in a state of shock and told him that he had to co-operate in bringinga Securicor van full of money to a liaison point where it could be stripped by the criminal confederates of the money it contained. The victim was apparently required to take photographs of his family and to bring these to a fellow employee in order to ensure the success of the criminal enterprise. This the victim did. A considerable amount of money was taken and his wife and child, who had been taken from his home and tied up in a forest, were released after their ghastly ordeal. The money robbed in this way has never been recovered.

3 3. I have little idea as to the case being made by the prosecution against the applicant Niall Byrne. Even if I did, I would not repeat it here. For the purpose of these judicial review proceedings, it suffices to record that on 8 ^th May 2006, following an extensive garda investigation, the applicant was charged. On 14 ^th August 2006, a book of evidence was served and further disclosure of possibly relevant material by the prosecution followed. This was substantial, perhaps out of an abundance of caution. On 28 ^th April 2009, a jury was empanelled to try the applicant together with a number of other people. Of these, two were unavailable because they had decided to emigrate to the Philippines. The empanelling of the jury took time. The trial was then under way. In the course of it, on two days in May 2009, the learned trial judge, His Honour Judge Tony Hunt had drawn to his attention certain material stored in the websites of newspapers which gave details as to bail hearings that concerned some of the accused men. These publications were contrary to s. 4(J) of the Criminal Justice Act 1967. The judge required the removal of this material from the internet. The newspapers complied. The trial continued for several more weeks. On 5 ^th July 2009, a particularly unfortunate broadcast occurred on the Marian Finucane show on RTÉ Radio One. This included intemperate and silly comments from a panel member which were completely inappropriate in the context of a continuing criminal trial. Again, the defence made an application to the trial judge who required the attendance of relevant executives from RTÉ who, having apologised, removed the relevant broadcasts from the podcast area of their website. The judge was of the view that if the jury had heard these baseless comments, that he would have had no option but to stop the trial. In the event, on questioning, it turned out that the jury members were unaware of the programme. On 30 ^th July 2009, three men were convicted of the offences of robbery and kidnapping. In respect of two others, including this applicant, the jury disagreed on their verdict. None of the men gave evidence. On 12 ^th November 2009 the three convicted men were sentenced to 25 years in prison, the judge referring to them as "a revolting crew".

The Crime and the Trial

4 4. It can be readily imagined from this brief recital of facts that at the time of the robbery and kidnapping there was considerable newspaper and other media publicity. The public have an entitlement to be informed as to what is going on in their society and there is nothing wrong with that. In addition, it was highly probable because of the notorious nature of the crime, and it in fact happened, that various specialist journalists engaged in speculation or guess work as to the nature of the criminal gang and their origins. In this respect, no one was named. It was, however, said that some of the gang members may have been involved in murder in the past. A view that the criminals were particularly vicious and well-trained was also widely aired. This arose naturally from the nature of the crime, apart from any sources that might be consulted.

5 5. I wish to state immediately that the fact that a crime is vicious or depraved, does not impact on the fairness of a trial. The purpose of a criminal trial is to attempt to analyse whether the prosecution have proven their case against any individual accused beyond reasonable doubt. Whether the crime is trivial or vicious, the same standard applies. The accused is presumed, in every instance, to be innocent; he may not be convicted unless the prosecution meet the required standard of proof and an accused has an unassailable entitlement to reasonably and fairly participate in the trial through cross-examination, the calling of evidence and by making submissions.

6 6. There is nothing in the publicity generated at or around the time of the offences which would, in any way, point to the applicant as being involved. It is argued on his behalf, however, that the accumulation of the publicity at the time, coupled with contemporary reports of the trial and sentencing process will prejudice his prospects of a fair re-trial. In particular, it is said that the adverse nature of pretrial publicity can never be dissolved, whereby adverse publicity retreats from public view with the passage of time, because much of this material is stored on the internet.

The Internet

7 7. The internet consists of thousands of linked computers. Many newspapers have websites. Some of them may be accessed only on payment of a...