Jack Warner and the sub judice rule

Express Editorial
July 21, 2015 – trinidadexpress.com

Jack WarnerEven before the arrest and incarceration of Jack Warner on May 27, 2015, Mr Warner’s perceived and alleged wrongdoings in FIFA occupied headlines in national, regional and international newspapers and electronic media.

Since the arrest, scores of articles, talk shows and news items have been most liberal with matters existing out of Mr Warner’s US indictment for fraud, racketeering and money laundering. As we say in Trinidad and Tobago, every Tom, Dick and Harrilal have “washed their mouth” on Mr Warner’s charges.

As recently as June 21, a prominent investigative journalist in a daily newspaper had this “mouth washing” to say:

“From Switzerland and Qatar to Trinidad and Tobago and the Cayman Islands, a substantial number of those corrupt transactions passed through the local banking system, according to the US Department of Justice…”

And again,

“US sources say Warner used an array of tactics to camouflage his alleged theft of football funds including $750,000 US in emergency aid intended for earthquake-devastated Haiti in 2010.”

In the very same article: “another transaction under scrutiny of US prosecutors is the $10 million US bribe payment made to a Warner-created dummy programme called the African Diaspora Legacy in exchange for votes in favour of South Africa hosting the 2010 World Cup.”

Such bold statements of alleged facts. Even “alleged” has been dumped!

The legal principle that one is innocent until proven guilty, a principle enshrined in every civilised society that boasts of the rule of law such as ours, has long been trampled upon and is of no value in T&T, and in particular this case. One wonders if this could have happened in the UK.

But more important is the sub judice rule. Sub judice is Latin for “under judgement” and means that a particular case or matter is “under trial” or being considered by a judge or court. In England and Wales (under the Contempt of Court Act, 1981), and many other jurisdictions in the Commonwealth, it is considered inappropriate to comment publicly on cases sub judice, which in some countries is an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process.

Basic legal research will reveal that a substantial risk of serious prejudice can only be treated by a media report when proceedings are active.

In matters of a criminal nature, proceedings become active when there is an arrest, issue of an arrest warrant or a summons. Without a doubt, Mr Warner’s proceedings are active. Only recently the Speaker of the House of Representatives, Wade Mark, stumped Mr Warner from debating his Howai motion when the Speaker declared that the meat of Warner’s motion was engaging the attention of the civil courts (not criminal), and was therefore sub judice.

In England, civil proceedings are active when the hearing date for the trial is arranged, and in Scotland, when the parties’ pleadings have been finalised and the record is closed. Neither happened in the Howai case.

Mr Warner’s defence will no doubt determine whether or not the extradition proceedings in themselves form part of the judicial process that will eventually determine his innocence or guilt and whether or not the volumes of published material create a substantial risk that the course of justice in the proceedings would be, or have already been, seriously impeded or prejudiced. Further, the very media houses, all who have thrown caution to the wind, may unwittingly have committed common law contempt of court.

Common law contempt introduces a fine line between pressing for prosecution, which is acceptable, and influencing public perception of an individual who is about to be prosecuted, which is forbidden.

The late Dana Seetahal SC, writing in the Trinidad Guardian on Sunday June 13, 2004, on the Privy Council judgment in The Independent Publishing Company, The Mirror, Ken Ali and Sharmin Baboolal versus the Attorney General and the DPP (the Mirror contempt case), stated that the Privy Council held “that it was a contempt of court to publish the particular material in this case.

This was because a court has inherent power to protect the due administration of justice. Thus, anything that is done that is prejudicial to such due administration is a contempt of court”.

Surprisingly, no judicial or legal officer, including the Attorney General, has sought to warn the media of the serious legal implication of violating the sub judice rule. Perhaps Mr Warner knows why we may be in for “a long, hot summer”.

Source: www.trinidadexpress.com/20150720/editorial/jack-warner-and-the-sub-judice-rule

3 thoughts on “Jack Warner and the sub judice rule”

  1. Sue is looking on patiently, perhaps today Sue will get to come out of the shadows and stake her claim to the possible millions in defamation lawsuits. After all according to Warner it will take 15 years to fulfill his date with Loretta Lynch. In the mean time he will have to deal with an angry Sue.

    The law allows pro and con on almost all issues, a lawyer can be a proficient prosecutor and an effective and prominent defense lawyer as well. Because of this reality, there is a popular saying thatW “the law is an ass”. Laws work well when the infrastructure surrounding it’s effectiveness are observed and executed according to the letter of the law. I am no law expert nor do I have professional training in law to make lawful pronouncements but, when laws exist only to be used conveniently, its effectiveness must not just be questioned, but it can foster inequality and mistrust as well. One of the ABCs of law is that when a case is before the courts, no mention of facts or details should be made outside of the legal jurisdictions pertaining to the case. Sub judice is described as “adjective. Law under judicial consideration and therefore prohibited from public discussion elsewhere: the cases were still sub judice.” This, in essence means that the law prohibits discussions on matters before it, in the public domain. In a real democracy, actions are taken when laws are broken. In our democracy, actions are taken depending on who breaks the law. The practice of selective applications of the law is why we are in so much trouble with the law fraternity in this country. The average man in the street, see the office of the Chief Justice, the magistracy, the office of the Attorney General and the DPP as first tier responsibility for the application of the law. The Police Service is seen as the arm of the law that ensures adherence by all and sundry. Such is the nature of our infrastructure. The infrastructural confluence of the law process in Trinidad and Tobago is at best confusing. When the Prime Minister, a person conferred with the title S.C, a trained lawyer and a member of parliament makes disparaging remarks on a person whose case is before a court, it weakens the sub judice rule and demeans the process which should be sacrosanct. It is further compromised when the media, uses the politicians shortcomings to validate news. I am talking about quotations like “corruption accused Jack Warner”. It is how Jack’s enemies would prefer him to be called, the description being politically inspired. But when the media acquiesce in promoting such political dialog, it does give some semblance of encouragement to the politics of spite and mauvis langue. If anything, the media should be used as a correctional instrument to those who would flagrantly show disrespect for the rule of law. But do we? It is obvious that the government of the United States is treating the case of Jack Warner with the sub judice rule in mind. But nobody hears or knows what is being done UNTIL they are willing to make it public. That should be the ethics of the rule. It is obvious that the politicians and the media are in haste for the documents of extradition to arrive. None are concerned about the process and care very little about it either. All they care about is the outcome. There is little or nothing about that behavior that promotes democracy – nothing! It is the politicians and the media here in Trinidad who are breaking it. They are the ones making pronouncements that can be prejudicial to its trial. When, one holding the position of Majority Leader, in the House of Representatives, makes a statement like “Loretta Lynch waiting for you”, it is not just prejudicial but demeaning as well for someone holding such position. They are the first to tell you, you are innocent until proven guilty, but would also be the first to tell you that you are guilty. How can we expect mutual respect when such is the case? In our country, politicians are the biggest law breakers. They flaunt their positions even in the face of absurdity to show that they can get away with it. The media acts as either willing or unwitting conspirators in that respect. That is the reason there is little or no respect for the law. The people most likely to be punished are the poor and and less fortunate.

    The United States has moved in on former FIFA vice-president Jack Warner. Attorney General Garvin Nicholas yesterday announced the extradition request for Warner was now in his hands.

    Jack: You have 15 years to wait
    Corruption accused JACK Warner last night said he will be providing the United States Embassy with documents showing that Prime Minister Kamla Persad-Bissessar was bribed to prevent the extradition of businessmen Ishwar Galbaransingh and Steve Ferguson.

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