July 21, 2015 – trinidadexpress.com
Even 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…”
“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”.