A murder trial has collapsed at the Central Criminal Court due to the content of part of an RTÉ Prime Time programme broadcast on Tuesday night which discussed the defence of provocation and which the trial judge said was likely to have influenced the deliberating jury.

Five hands went up when the jury in the case before Ms Justice Carmel Stewart were asked by her if any members had watched the segment of the programme dealing with provocation.

The judge criticised what she described as “a parallel justice system in the court of public opinion” that operated without “any regard to the courts at trial”.

She was responding to a defence application to discharge the jury following a 10-day trial due to a segment on the programme which the barrister said “rubbished” the defence of provocation, on which he was partially relying.

The programme was a follow up to the recent Kerry case in which Michael Ferris was jailed for manslaugher after he drove his teleporter at farmer Anthony O’Mahony’s vehicle after a decades-long row about a noisy bird-scarer. The jury accepted his defence of provocation.

No mention was made on the Prime Time programme of the case before Ms Justice Stewart in which the jury was already deliberating.

The jury had begun deliberating in the case of Keith Brady (31), of Cartron Estate, Sligo, on Tuesday. He had pleaded not guilty to a charge of murdering Martin ‘Matt’ Kivlehan but guilty to his manslaughter at the New Apartments on Holborn Street, Sligo, between August 2nd and 3rd, 2015.

Brendan Grehan SC, for Mr Brady, had said that his client satisfied the defence of provocation because he had perceived that the deceased was touching his sister, Janice Brady. The judge had explained that provocation could reduce murder to manslaughter.

The eight men and four women of the jury had spent just under two hours considering their verdict before suspending deliberations on Tuesday evening.

They were due to resume their deliberations in the case, a retrial, on Wednesday but before they returned to court, Mr Grehan raised concerns about a segment from the Prime Time programme with the judge.

Provocation

He explained that following a report on a recent Kerry murder trial, there was a discussion about the law of provocation between the presenter and a well-known senior counsel. He then played the clip to the court.

“I’m not saying there can never be media, academic or legal discussion in relation to a defence or its merits,” said Mr Grehan. “But we are, in this trial, at a particularly sensitive time where a jury is deliberating.”

He said that the criticism of the defence of provocation and of the subjective test used in the defence may or may not be valid. However, he said that what the viewer was left with was a suggestion that it was an ancient defence where somebody could make any allegation against the deceased who cannot rebut it and, in particular, an unwanted sexual advance.

He said that this unfortunately mirrored the facts of this particular case. He said that provocation had been described as defence-friendly and ridiculous by reference to two of the most well-known supreme court judges in the country.

“It effectively suggests that the courts here are soft on the defence and rubbishes the defence of provocation,” he said.

He also complained about the suggestion, attributed in the piece to the late Mr Justice Adrian Hardiman, that the frailties of this defence could be mitigated by the person raising it having to get into the witness box to explain what they did and be open to cross examination.

Mr Grehan said that he could not find this comment in any of Mr Justice Hardiman’s judgements. If it was, he said, prosecutors would be raising that as an objection to the well-known rule that no inference could be drawn against an accused from his or her not giving evidence.

‘Exposed’

He said his client had seen the programme and was concerned by this very point.

“It leaves the jury in the situation where they’ve heard directions from you but now may have been exposed to the view that judges of the Supreme Court don’t agree with the law in respect of this matter,” he said. “The application I’m bound to make is one to have the jury discharged as there’s a real risk and danger that contamination may have taken place.”

Going by the Prime Time ratings from last year, Mr Grehan said three of the 12 jurors could potentially have seen the programme and been influenced by it.

Paul Murray SC, prosecuting, said he could not think of any case either where Mr Justice Hardiman had expressed the view about the accused getting into the witness box. However, he said that he was not too sure that it was absolutely and necessarily fatal to the case.

Both barristers agreed that, if none of the jury had seen it, that could be the end of the matter so long as the piece would be taken down off the internet.

The judge then called the jury in to ask if any members had watched the segment dealing with provocation. Five hands went up.

“Given that five of you watched it, did any of you discuss it this morning?” she asked.

“Yes, yes, yes,” replied the foreman.

The jury was asked to retire again and the prosecution took instructions.

Mr Murray then told the judge that, while he was not in a position to accede to Mr Grehan’s application, he was not going to argue anything further. He also said that he did not know whether any enquiry was made by the national broadcaster as to whether any relevant trials were ongoing.

Ms Justice Stewart said it was with great regret, but that she was left with no option but to discharge the jury.

“Five viewed it,” she said. “To compound the matter further, it was discussed among the jury.”

‘Relevant’

She said it had been brought up and discussed “because people, who viewed it, thought it was relevant”.

“There’s a likelihood they could have been influenced by the programme,” she said. “Mr Brady is entitled to a trial in accordance with law. The defence of provocation is the law of this land as it stands.”

She said that, if the law is to be changed in future, it is for other authorities.

She then said that “some sort of parallel justice system in the court of public opinion” was “effectively gathering force...without any regard to the courts at trial”.

“You have to sit through a criminal trial from beginning to end to get the full picture,” she said. “In this day of instant communications and instant response, this parallel running commentary ongoing in both media and on other public platforms and social media comment is quite concerning.”

She noted that another Central Criminal Court trial had collapsed over the past fortnight due to such coverage.

Ms Justice Stewart said that perhaps there would need to be a return to courts sitting late at night and juries being sequestered to a hotel until there was a verdict. “It may well mean that we have to return to that, if this type of running commentary continues where trials are ongoing,” she said.

The judge extended her sympathies to Mr Kivlehan’s family, who had been present throughout the trial, and said the development compounded the grief and distress that the family had been under.

“I really can truly assure you that this is not the outcome that anyone in this courtroom wanted. This is a tragedy, but maybe eventually someone will take note and take care before they issue wanton utterances on issues of sensitivity.”

She then called the jury back to court and discharged them.

Mr Brady was then remanded to December 17th, when a date will be set for his third trial.