Sub judice Rule/ Contempt

Black’s Law Dictionary gives the pronunciation for sub judice as sab joo di see and suub yoo di kay. It is the Latin for “under a judge”. Sub judice contempt, sub judice liability, sub judice convention and subjudice rule are used invariably to refer to the prohibition on discussion of matters that are pending before the court. The sub judice rule is derived from the common law and has been looked at as a necessary part of the justice system because of the part it plays in the protection of certain fundamental rights given under the constitution. Violation of the rule may sustain a finding of contempt of court.{{more}}

The issue has invariably generated discussion as to its utility. It is perhaps the recent charges brought against a youth for the murder of a public figure that has brought the issue under public scrutiny again.

The rule generates similar discussions elsewhere. In New South Wales, Australia, the authorities saw it fit in 2002 to set up a commission to determine whether the sub judice rule should be retained. It enquired into the issue of freedom of speech and due process of the law. It also explored the need to balance the right to a fair trial against the right of the public to be kept informed of court trials. Its recommendations were for its retention with a few modifications.

The constitution of St. Vincent and the Grenadines, like most Commonwealth countries, provides for the right of an individual to a fair trial. It also provides for the right of an individual to free speech. Section 8 of the constitution states that “any person who is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” According to section 10, “except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”

Freedom of expression is, however, limited by “that which is reasonably required in the interest of defence, public safety, public order and public morality” It is also limited where it is “reasonably required for the purpose of protecting the reputation, rights and freedom of other persons” and “for the proper performance of the duties of public officers”.

As shown above the two rights are protected by the constitution but the sub judice rule protects those individuals in legal proceedings from the adverse effect of discussion on matters in court. It prohibits publications which, while not influencing the outcome of the trial, have the tendency to prejudice issues at stake in it or to embarrass the court or to impede the administration of justice. The rule is especially important in criminal matters where it is felt that the jury who is the arbiter of facts might be prejudiced because of discussion related to a case. It is generally considered that this would not have the same effect in civil matters as it is not likely that the judge would be susceptible to external influences. It is not an all out ban on discussions, but on crucial matters pertaining to the case which could be prejudicial and damaging to the accused and his right to a fair trial.

The publications which may amount to a violation of the sub judice rule include interviews with potential witnesses, statements that the accused has previous convictions, prejudgment of the merits of the case which may influence impartiality, material that is hostile or abusive to potential witnesses, alleged confession by the accused, publication of the identity of the accused especially where identification of the accused may be important in the police investigation, and information given in a voir dire, among others.

• Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com