Tuesday 12 December 2017

Publicity is a small price to pay for the benefits of open democracy

Legal editor says inquiries must remain open

Anne harris

Wrongdoing will thrive in the shadows. The light of public scrutiny is often its greatest deterrent.

We all accept that the public interest in catching wrongdoers, as well as ensuring that the innocent go free, requires a robust and open courts system, said Dearbhail McDonald, associate editor and legal editor of the Irish Independent, in a speech to the oral hearings and inquiries conference at Clontarf Castle hotel yesterday.

However, she warned: "There is a danger that an agenda to push back on the holding of public inquiries, in favour of a return to private, semi-private or anonymised ones, may succeed because of antipathy towards the media.

"Journalism has become the lightning rod for complaints – mainly by the legal profession and their clients – that media coverage of various inquiries has destroyed the reputations, careers and finances of witnesses who appear before them.

"But publicity is the democratic price we sometimes have to pay for fact finding, accountability and the restoration of public confidence in the wake of a major crisis or a significant incident."

Ms McDonald conceded that media reports of tribunals, inquiries, oral hearings are occasionally sensational, "but it is often overlooked that it was media revelations and sustained investigative journalism in the public interest which revealed allegations of corruption and misconduct in Irish society, that led to the establishment of many inquiries in the first place.

"Corrupt behaviour and misconduct in all aspects of Irish public life, it seems, is both pervasive and innate.

"We have had eight public inquiries to probe allegations of political corruption alone since the foundation of the State, but it is worth reminding ourselves why tribunals, which should be used sparingly, have been granted such exceptional powers – by our elected representatives.

"They are established, as set out by Lord Justice Salmon, in times of a nation-wide crisis of confidence when no other method of investigation is deemed adequate. But they are not without their faults.

"The enormous expense and dramatic effects of modern tribunals, including the risk of breaches of privacy and baseless allegations being made against a citizen over prolonged periods of time, has been well documented in our courts and elsewhere.

"I would be among the first to acknowledge that reputations have been damaged, partly as a result of the modern-day tribunal drill, partly as a result of media conduct."

"The greater the timespan between the opening statement and the rebuttal," she said," the greater the potential there was for damage to reputation. And the greater the timespan between the opening and conclusion of a tribunal, the less it satisfies the public interest which requires urgent answers to distil lessons as well as provide catharsis and accountability."

'Why should inquiries, into matters of grave public importance... or professions... be treated differently?'

Ms McDonald went on to say, "But there are times when the public interest justifies the invasion of privacy of individuals, even very prominent ones.

"We all accept in criminal cases that this means that those who have suffered, eg the victims of Thomas Byrne, will be forcefully cross examined and have their private affairs opened to public delectation," she said, adding:

"They will have their photographs on the front pages of newspapers and on the television news.

"Yet, they have done nothing wrong. However, this is required if there is to be public confidence in the criminal justice system.

"Why should inquiries, into matters of grave public importance or into professions which are the cornerstone of any civilised society, be treated differently?

"Public scrutiny is a cornerstone of public trust, she said. "It is politicians who decide whether a tribunal should be established to inquire into what they consider to be definite urgent matters of public importance.

"It is politicians who framed the terms of reference that contributed to the appalling duration of some tribunals.

"And despite all the handwringing and faux horreurs in Leinster House, it is politicians who approved the rates of pay for lawyers that resulted in much of the widely condemned costs and expenses of tribunals.

"The key question is what we stand to lose if do push back? How would the public feel, for example, about a private banking inquiry?

"In the final analysis, the best way to enhance public confidence in inquiries is to ensure that the default position is publicity not secrecy.

Sunday Independent

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