'Trial by media' is an oxymoron

As all viewers of Columbo, Inspector Morse and A Touch of Frost are aware, the "hunch" is a crucial element of police detective work. In the fictional world, the investigator forms a view of what has occurred – how the crime was committed; who had means, motive and opportunity; who the murderer might be – and sets about looking for the evidence to back up this hunch. In television land, these hunches are disproved on only the rarest occasions, and then only in the subtlest fashion. It emerges that Inspector Morse was right about his suspect but for a time mistaken as to the significance of a crucial detail of the methodology.

Inspector Frost overlooked the critical importance of the stopped clock, until after the final ad-break, when it all became clear.

Columbo, I seem to remember, never got it wrong. But in the real world, though essential to the investigation of crime, these hunches are necessarily wrong at least as often as they are right. In investigating a crime, detectives are required to explore all kinds of hypotheses and discuss and debate these among themselves. As a case develops, it is probable that the shadow of guilt travels across a range of targets before settling on one or other. Then, as the next phase of the prosecution process begins, the earlier suspicions about what have emerged as innocent individuals are dissolve as though they had never existed, remaining only in the memories of the investigating officers as perhaps embarrassing recollections of false trails, elaborate theories or plain errors of judgement. No harm, or very little, is done.

But a new tendency has emerged in recent years in which the investigating officers in certain types of murder cases cooperate with journalists in publicising selective details of investigations with a view, usually, to putting pressure on a particular suspect. This, of course, is in convenient coincidence with the media's appetite for salacious and titillating material. The result is the media whodunit, in which a real-life murder investigation becomes like a serial Inspector Morse story, with the public given an armchair view of the speculative workings of the enquiring detectives. Until someone is charged, there is no legal impediment in relation to media coverage of a crime or its investigation. In many respects this is a good thing, ensuring, for example, that the public is reassured that the investigation is continuing. But in recent times sections of the print media, with the enthusiastic assistance of gardai, have started to push the envelope further than is healthy. A number of techniques are employed in certain types of cases to convey to the public what the investigating officers are thinking or saying among themselves. One such is the elaborate description of the funeral of the deceased, in which any evidence of tensions between family members is highlighted.

At a later stage, if an individual is arrested or questioned, journalists find themselves in a position to reveal the nature of the evidential line being pursued and to become aware of developments, such as impending arrests, much earlier than might be expected on the basis of mere professional assiduity. Hints are dropped. Kites are flown.

Suspects find themselves being monitored as much by the media as by, presumably, the investigating police officers. One such case is the investigation into the brutal murder of Rachel O'Reilly, For the past 18 months, readers of certain Irish newspapers have been given the sense that they are privy to insider knowledge about this killing. They know who "done it". They know "why". At the checkout counters and dinner tables, the verdict is proclaimed and the motive declared proven. Pub detectives share their theories and get in another round.

To date, nobody has been charged for the murder of Rachel O'Reilly.

If we are to judge from the disjunction between what is suggested in the newspapers and the actual policing progress in the case, it would appear that the investigating detectives are in some difficulty. And yet, as a result of a generally unremarked shift in the culture of journalism, Joe O'Reilly, the husband of the dead woman, has in effect been convicted in the court of popular opinion. Open season was declared at an early stage when Joe O'Reilly rather foolishly observed that he too was a suspect in his wife's murder. Last week, after he and his girlfriend has been questioned once again, the Evening Herald ran a story on its front page headed "Come clean about your affair, Joe".

This new allegation was made on the basis of a newspaper interview with the father of the woman in question, in which he said that there had been a "relationship" between his daughter and Joe O'Reilly before Rachel O'Reilly was murdered. The pub detectives know precisely what to make of this. To call this "trial by media" is to misrepresent what is going on. "Trial by media" is an oxymoron. For in the media there can be no trial, merely a summary prosecution. A trial is a two-way process in which the accused is able to answer charges and mount a defence in a purposefully created safe environment where his rights are respected. But in the real-life Touch of Frost, there is no defence, and no possibility of mounting one without incurring further risk of self-incrimination. Indeed, among of the objectives of the selective leaks to journalists is to provoke the suspect into doing or saying

something that will assist in making a case against him. Joe

O'Reilly is an innocent man. I can say this not because I have some inside knowledge about the case, but because this is what the law makes

clear: an accused person is innocent until proven guilty. Joe O'Reilly has never even been accused, other than by nod and wink. If he ever is, he will almost certainly, on the basis of the behaviour of the Garda Siochana and certain sections of the media, be able to make a persuasive case that he cannot receive a fair trial. But, as things stand, there is no trial, no charge, no formal accusation – nothing but smear and innuendo.