Under Scrutiny: Desist in the name of ‘sub judice’!
Source: Barbados Avocate
Published: 4/22/2013
By Stephen Alleyne

During the Barbados leg of the Shanique Myrie hearing before the Caribbean Court of Justice (CCJ), a number of callers on the radio call-in programmes sought to discuss the evidence as it unfolded, only to be reminded by the hosts, and some callers, that the matter ‘was sub judice’, that is, under judicial consideration. The hosts, in other words, preferred they didn’t go there for fear that their stations could be cited for contempt of court since the matter was yet to be decided. 

The sub judice rule was developed to regulate the publication of matters which are under consideration of a court; and, it has been suggested that a criminal matter is under the consideration of a judge from the time it becomes active, active here taking on a broad meaning. That is (1) once the accused is arrested, (2) a warrant has been issued for his arrest, (3) a summons has been issued for his attendance on an information, or (4) he has been charged. However, the better view is that expressed in (3) and (4) above and followed in R v Duffy and Others, Ex parte Nash [1967] 2 QB 188: 

“[I]t is clear on the authorities that proceedings are pending in this sense from the time that a person is charged even though he has not been committed for trial.” 

Proceedings, according to the cases, cease to be active or are finally over “when the Court of Criminal Appeal (I’d say the final court of appeal, which in Barbados is the CCJ) has heard and determined the appeal, and after that time they are in no peril of being dealt with for contempt of court.” – Delbert-Evans v Davies and Watson [1945] 2 All ER 167. 

Not everything that is published about a matter that is sub judice offends the sub judice rule, however. Media practitioners know that a fair, accurate and contemporaneous report of proceedings in public before a court is protected by absolute privilege under the Defamation Act, Cap. 199. Trouble can surface, however, when the media impose their opinion on the facts of a case, and this is where they have to be extremely careful. In spite of the risk, the media must not be afraid to allow members of the public to have their say in proper cases. 

An article published in a newspaper or broadcast over air concerning a matter that is sub judice is only a contempt of court if in the circumstances existing at the time of publication the article was intended or calculated to prejudice the fair hearing of the proceedings. The media in the name of the sub judice rule must therefore not stifle public discussion in cases of significant public interest like the Myrie case. In determining how far they can go in giving their views and permitting public discussion on sub judice matters, the media must have regard to the nature or composition of the court. Judges, unlike juries, are trained to guard themselves against prejudicial comments and extraneous influences. 

Hence, it is difficult to envision what could be said in the media to influence or prejudice the decision of a panel of Court of Appeal or CCJ judges. 

So, this hard and fast policy of the media in not allowing callers or writers to discuss judicial matters of any kind is, I suspect, either originated out of ignorance or misadvice.