Nii Osah Mills was right – the Bar Council is misleading us – not everything is 100% sub judice
The term sub judice simply means the matter is under judicial consideration. In certain situations comment on a case which is sub judic is permitted. In other situations such comment is not permitted. The Bar Council through Mr Frank Davis has recently said comment is never permitted. I understand from JoyOnline FM that he is supposed to have made the following statement:
“When a matter is under judicial consideration and judgement has not been delivered, that matter is not open to discussion by any body, be you a lawyer of 100 years standing or one year standing”
I am writing this article because for one reason or another the Bar Council is not providing the public with the full picture. Indeed the Bar Council may even be bringing further disrepute to the profession. I am making these statements simply because there are three broad situations which throw up the issue sub judice comment as far as criminal trials are concerned. They can be summarised as follows:
1. criminal justice situations where the trial is by jury and the rights of the accused could be prejudiced by mass media comment – here the legal system insists on silence so as to ensure that the accused gets a fair trial and the administration of justice is enhanced;
2. criminal justice situations where the trial is by a judge only and the rights of the accused could be prejudiced by mass media comment but this does not matter as the judges know what the rules for protection of the accused, are, faithfully uphold them and thus protect the rights of the accused despite the mass media comment;
3. criminal justice situations where the trial is by a judge only and the rights of the accused are in fact, protected by mass media comment – this is the scenario with Tsatsu, mass media comment is permitted because the judges are either intentionally refusing to comply with the minimum rules of judicial conduct or are not aware of them - commentary is permitted and is based on the principle of freedom of speech, improves the rule of law and ensuring open justice.
As we can all see below, some of the judicial commentary on Category 3 even goes so as far as to state that there may in certain circumstances even be a "duty to comment" This would be the case where the judicial system is known to be corrupt, judges are often improperly influenced either politically or with money, or have just been incompetent, lazy or inept. In these situations, there is a duty to comment – provided it is truthful measured, informed and accurate commentary which contributes to the proper administration of justice. Nii Osah's comments were of this sort.
Please read the judicial authorities for yourself and you can decide whether the Bar Council is giving the Ghanaian public the full picture.
Lord Atkin, Ambard v Attorney General for Trinidad and Tobago  AC 322
The path of criticism is a public way. The wrong-headed are permitted to err therein. Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right to criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue, She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.
Justice Black, U.S. Supreme Court, Bridges v. California, 314 U.S. 252 (1941)
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect. The other evil feared, disorderly and unfair administration of justice, is more plausibly associated with restricting publications which touch upon pending litigation. The very word "trial" connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper. But we cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that, to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. We must therefore turn to the particular utterances here in question, and the circumstances of their publication, to determine to what extent the substantive evil of unfair administration of justice was a likely consequence and whether the degree of likelihood was sufficient to justify summary punishment.
Justice Amua-Sekyi in Republic v. Mensa Bonsu, Supreme Court of Ghana
Justice Sekyi of the Supreme Court of Ghana in his dissenting judgment said:
Courts must have regard to the right of every person to express himself freely and openly on all matters of public concern whether pertaining to the actions of the executive, the legislature or the judiciary. The ordinary laws of libel were the only check on any abuse of the right of free speech in circumstances such as these". Justice Sekyi made three further important points:
1. the judiciary should not demand a level of immunity that is not accorded to the legislature or the executive.
2. Any aggrieved judge has access to the ordinary laws of libel to prosecute defamatory speech if the criticism is malicious and unjustified.
3. Robust debate on matters of public interest must not be interpreted as efforts to obstruct the course of justice
Attorney-General for NSW v. Mundey, Hope J  2 NSWLR 887, p. 908
There is no more reason why the acts of courts should not be trenchantly criticized than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism
Cory JA, Ontario Court of Appeal R. v. Koptyo (1987), 62 OR (2d) 449 at 469
As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not feliciously worded. Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy…. The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions
Griffith CJ - (1911) 12 CLR 280 – The Nicolls Case
I am not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court. On the contrary, I think that, if any Judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.
The High Court of Australia Nationwide News Pty. Ltd. v. Willis (1992) 177 CLR 1, 38.
[T]he revelation of truth—at all events when its revelation is for the public benefit — and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court of public confidence
Hope J. in Attorney-General for NSW v. Mundey,  2 NSWLR 887, P. 910
It does not necessarily amount to a contempt of court to claim that a court or judge had been influenced, or too much influenced whether consciously or unconsciously, by some particular consideration in respect of a matter which has been determined. Such criticism is frequently made in academic journals and books and the right cannot be limited to academics….
Lord Denning MR in Metropolitan Police Commissioner, ex parte Blackburn,  2 QB 150
It is the right of every man, in Parliament or out of it, in the Press or over broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not… Let me say at once that we will never use this jurisdiction [the contempt jurisdiction] as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more at stake. It is no less than freedom of speech itself
High Court of Australia in Nationwide News Pty. Ltd. v. Willis, (1992) 177 CLR 1, pp. 38-39
[A] public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit.
Salmon LJ in R. v. Metropolitan Police Commissioner, ex parte Blackburn,  2 QB 150.
It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty - freedom of speech, which our courts have always unfailingly upheld. It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits. No criticism of a judgment, however vigorous, can amount to contempt of court if it keeps within the limits of reasonable courtesy and good faith.
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