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The
Firm Magazine -
9 January 2009
"See no evil, click no evil"
It's
the oft asked question of the frustrated editor- ‘Why can't
I publish that information when it's all over the net?' It's
difficult to give a convincing argument in response, when you
are shown various websites that highlight previous convictions
and pronounce the guilt of an accused awaiting trial.
The press remain constrained, notwithstanding what individuals
publish online, because their markets are easily defined in
comparison to the mostly unregulated internet. Their risk of
contaminating a trial is easily quantifiable by the size of
their audience. The restraint on press freedom is to allow an
accused a fair trial and is enshrined in the Contempt of Court
Act 1981 which places a prohibition on publication which creates
a substantial risk of serious prejudice.
But 27 years since its introduction, does the Act still effectively
afford the accused that right, given the availability of news
and accessibility of archives? The drafters of the Act
would not have envisaged the World Wide Web, 24-hour news, or
blog sites discussing the minutiae of all matters. But jurors,
potential or actual have these at their disposal.
In contempt cases, when examining the residual impact on the
publication of a potential juror the court will consider the
length of time between publication and trial. Does that hold
water when it is easy to refresh memory by the click of a mouse?
It used to be, with the exception of library archives, that
today's news was tomorrow's fish and chip wrappers. Not so now.
Today's news is here forever.
Both aspects of this can perhaps be seen starkly in the Vicky
Hamilton murder trial. As usual those balloted to serve on the
jury were asked prior to the trial whether they knew anything
about the people named on the indictment. It was explained to
them that they should come to the trial completely free of any
knowledge about the evidence that they might hear, so if they
even had have any fleeting or questionable involvement with
any of the people or matters alleged in the indictment then
they should be excused.
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When the remains of Vicky Hamilton
were found alongside the remains of Dinah MacNicol, the excavation
of the site remained lead news, both Scottish and UK wide. It
begs the question of whether anyone sitting on that jury, resident
in the UK who owns a TV, radio, or reads a newspaper would not
have some knowledge of the accused. That's not to say they didn't
perform their duties and follow the directions of the trial
judge, namely to listen to the evidence and decide the facts
of the case on the basis of the evidence heard in court and
not on the basis of anything else. It just casts doubt.
So far as archive is concerned, then what is to stop the juror
coming home after a hard day's evidence and typing the name
of the accused into a search engine? Nothing, except the
direction from the trial judge to decide the facts of the case
on the basis of the evidence heard in court. Our entire system
of trial by jury is dependent upon confidence being placed in
juries to follow directions which they are given.
In the Tobin case, Donald Findlay QC took exception to a reference
on the Wikipedia website to Tobin's previous convictions for
the murder of Angelika Kluk. The reference to his previous conviction
was removed from the site but a simple Google search of the
word “Tobin” and “Wikipedia” brought up the cached page with
reference to his murder conviction albeit with a tag confirming
the page had been removed. Hardly decontamination.
In the World's End murder case, it was argued that Angus Sinclair
could not get a fair trial as a result of ten years of media
speculation that he was the killer. The court was well aware
that the availability of the internet and it's increasingly
wide use by members of the public, including potential and serving
jurors, presented a challenge for the administration of justice.
The court made reference to the position in Queensland , Australia
where a statutory provision had been made to the effect that
a person who had been sworn as a juror in a criminal trial must
not enquire about the defendant until the trial was over. That
prohibition is backed by criminal sanction, including the possibility
of imprisonment.
Whilst one can see the purpose of
such a sanction, it is hardly the greatest way to encourage
your fellow citizens to roll up for jury duty.
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Whilst we continue to get news
saturation in very high profile cases it will be harder to argue
fade factor. Thankfully such cases as Tobin's remain few and
far between. Knee-jerk reaction to amend the existing legislation
is not the way forward.
Newspaper clients of mine were asked if they would remove all
archived reference to Sinclair during his trial. They did, although
were under no obligation to do so. Cooperation between the media
and the authorities would be one way of limiting the risk of
prejudice. The problem is that it tends to lead to the oft asked
question of the frustrated editor - ‘Why should I do that, when
it's all over the net?'
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