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28th
July 2005, The Scotsman
THERE was a certain inevitability that there would be the usual
cries to uphold human rights legislation even in the face of
recent terrorist actions. The fact the warning came from Cherie
Blair at a time when her husband was calling for tougher terrorism
laws may be embarrassing for the Prime Minister, but it also
shows the delicate balancing act the legal system faces.
In her lecture in Malaysia, she made an extraordinary criticism
of her husband's government, as she urged the judiciary to stand
up to the "hurly-burly of majoritarian politics" in
the war on terror. She made clear the pressure to convict on
proposed new laws of inciting or glorifying terrorism should
be guarded by regard for British civil liberties.
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I
wonder just how long it is going to be before sections of the
media are accused of interfering with these civil liberties
by prejudicing the rights of those suspects accused of the failed
21 July attacks, should they ever stand trial. So far, we have
had pictures of the suspects at the crime scene, vast quantities
of background information about them, details of links to bomb-making
factories and daily reports of further "connected terror
cells". There seems enough ammunition to put the suspects
away forever, but none has been charged, yet alone faced trial.
The law that restrains what the press are entitled to publish
in the UK is contained within the Contempt of Court Act 1981.
It is a contempt of court to publish material that causes a
substantial risk of serious prejudice to the proceedings. This
is only when proceedings are active, at such time as a warrant
for arrest is issued or arrest itself takes place. Strictly
speaking, until those events happen, the press are at liberty
to publish with impunity.
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There
is a difference, however, with what the press are allowed to
publish in terms of contempt legislation and the interference
of the right to a fair trial. Just because the press do not
breach the act does not mean the accused automatically gets
a fair trial. It would be possible to have so much background
material published before arrest to potentially prejudice due
process.
The problem is competing rights. The public has a right to be
informed of what is going on. In current times the media has
a duty to inform the public. We have a right to know who the
suspects are, particularly since their actions impinge on a
way of life. But any defence solicitor will make it clear that
the accused must have the right to a fair trial. So where does
the balance lie? Cherie Blair said an independent judiciary
had the important task of reviewing executive action against
the benchmark of human rights. Like-wise a free press has the
task of fully informing the public in times of crisis. That
obligation should not be watered down.
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