A trial ends at a verdict — if everything goes right. The legal questions in that trial frequently don’t.
After the acquittal in Belfast yesterday, the IRFU and Ulster Rugby issued a statement making it clear that a review of the conduct of their employees — Paddy Jackson and Stuart Olding — was postponed until after the verdict.
It is clear their employers feel that the actions of their employees — for example, the messages that the defence accepted were those of braggarts — damaged the reputation of the employers, and it is a live question whether that review may still lead to disciplinary action.
That review of their conduct can now go ahead.
They are entitled to fair procedure in that review. However, an internal review of an employee’s actions is not the same as a criminal trial, nor is there the same high burden of proof.
The verdict does not mean that review is pre-determined, nor does internal fair procedure mean there can be no proper public discussion of the verdict.
It is understandable the public will have opinions as to what happens in and around a high-profile trial, but it is important that these are informed opinions, rather than guessing or speculating on what is happening in that trial.
Since a criminal trial is so very serious a matter, some of the online commentary on this trial has been worrying in many regards.
What is intended to support complainants can be counter-productive if it prejudices or even collapses a trial. The judge, in this case, had to give repeated warnings to the jury to ignore comments made which the judge accepted would have been almost impossible for jurors to miss. The trial could very well have collapsed under the weight of such commentary.
This would have been an absolute disaster for all concerned, and the fact that the learned trial judge managed to avoid this happening is worth praising.
It is important to remember that this trial took place in a different jurisdiction.
Sport may be cross-border, and the web worldwide, but legal systems are not.
This trial is silent about Irish law, because it was not a trial under Irish law. If it had been, the trial would have been in camera with anonymity for all concerned.
With that anonymity, it seems likely that the volume of comments and social media posts on it would have been orders of magnitude smaller, given that lower profile.
That does not mean similar problems could not happen here on cases that are not in camera.
They have; one thinks of the controversy over social media around the Jobstown cases. And this is where sport gets into a particularly tight corner.
Sport trades — literally trades — on its reputation. Sponsors will pay to link their brands with the reflected glory and values associated with sport and sports stars. That money keeps sports going. This is why bringing a sport into disrepute is always punished by governing bodies, and why attempts to damage the image of a sport or embarrass a sponsor are rarely forgiven by a sport. So, when a player gets into public trouble, the actions of the player in such cases almost invariably damages the employer; an employer is entitled to respond to such situations.
But immediate actions to protect a sport’s reputation must take second place to ensuring there is a fair trial and is postponed if it could prejudice a trial.
The problem is, if any action not condemning an allegation is seen in social media commentary as condoning, then even acting prudently to avoid affecting a trial can trigger controversy.
If refusing to comment on a live trial is reported as controversial and leads to comments online that mean a jury have to be warned, then the public interest in a fair trial is in real difficulty.
Can we have a fair jury trial of a sportsperson if no juror can avoid blizzards of controversy and speculation no matter what the sporting body does?
Are victims best served by fair trials being endangered?
Trials are invariably and unavoidably traumatic; it is hard to see how it helps to run the risk of forcing a complainant to go through two bouts of the same trial.
But, how do we avoid that risk? If is it folly to think people online will self-police and be restrained — and there is scant evidence they will — can jurors really be hermetically sealed off from all online comment for the duration of a trial?
Those questions are live ones in every jurisdiction. This case has thrown them into sharper focus for Northern Ireland. We would be wise to take this as a wake-up call about wider issues of social media and jury trials on this side of the Border, too.
Tim O’Connor BL is a practising barrister at the Irish Bar with a special interest in rugby and the law.
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