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Time to balance the scales of justice

03/09/05 By Harry McGee, The Examiner
IN the same week the Rossport Five were committed to Cloverhill Prison, American journalist Judith Miller also received the same tough love treatment for failing to cooperate with a US federal investigator. Miller, a well-known New York Times reporter, has been in jail for 66 days with little prospect of being released before October. She was jailed for refusing to name the Bush administration source who disclosed to her that CIA agent Valerie Plame was the wife of former ambassador Joe Wilson. Mr Wilson had openly rebutted the administration’s claim that Saddam Hussein bought uranium in Niger. Miller’s source is widely believed to have been Karl Rove, George Bush’s chief strategist, with a reputation as a master in spin and dirty tricks. It is a federal offence to knowingly disclose the name of a CIA agent. Miller has become a cause célèbre in the US with impressive campaigns and petitions in full flow. The principle she has invoked - that a journalist never discloses her sources - is not one recognised in US law. Nor is it recognised here. In 1973, the late RTÉ journalist Kevin O’Kelly was sentenced to three months in prison by the Special Criminal Court when he refused to identify the voice on an interview tape as that of Sean MacStiofáin, then on trial for IRA membership. O’Kelly’s sentence was later replaced with a fine of £250. So Miller languishes in jail. But the campaign isn’t exactly mirrored in Ireland. The gas pipe story in North Mayo has grabbed column inches this summer. But if it was a journalist - as opposed to five Joe Schmos from a small country parish - interest in the case would not be confined to a small number of TDs, their community in Rossport and a few campaigners. The five men (who are not criminals) have spent over two months in jail - with no immediate prospect of release. Publicly the reaction has been muted. There has been little outrage. There has been mild interest and a pile of indifference. Another aspect is disturbing. It has nothing to do with the merits of the men’s dispute with Shell but rather (like Miller) with the open-ended committal to jail by the courts. To commit somebody to prison for contempt indefinitely with no sell-by (or cell-bye bye) date has always had a medieval whiff about it - a kind of ‘put them into stocks’ form of justice. Courts have spoken about the importance of upholding their authority and standing. In the real world, that translates into a PR battle of attrition. No mortal may dare challenge the supremacy of the Gods. The open-ended sentence is an extreme sanction and leads to punishments that can be grossly disproportionate to the transgression. One of its goals is coercive - to force the person to purge their contempt. However, when somebody - like the Rossport Five - refuses to obey an order on a point of principle, it runs into sticky territory. Two decades ago, the Law Reform Commission in Australia considered the fairness of this power. It pointed out that many sentences served for serious criminal offences, such as robbery or manslaughter, can be as little as one or two years. There was a “grave risk”, it said, that somebody who refuses to comply with an order will sometimes suffer a sentence which is “manifestly out of proportion with the sentences experienced by major criminal offenders”. In this case, coercion is not going to have the desired effect. How long is the stand-off going to continue? As the Phillimore Committee in the UK pointed out (its report led to the open-ended sentence being replaced by a fixed-length sentence): “[They] have to be released eventually, despite non-compliance. A fixed term would save the appearance of a climbdown by the court.” Here, the Law Reform Commission recommended retaining the status quo. It argued unconvincingly that a fixed term would not protect the court’s authority and standing, and that the person, having served a fixed term, would leave prison ready to repeat the conduct. But that seemed to suggest that, in extreme situations, a court would be within its rights to leave a person in prison for life. Is 65 days in jail enough to satisfy the standing and authority of the court? Where’s the sense of proportion in all of this? Already, given the nature of the ‘crime’, this is rough justice.

Posted Date: 
21 August 2006 - 1:08am