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Fair trial

Ceri Thomas | 08:57 UK time, Thursday, 10 April 2008

The Contempt of Court Act is designed to be one of the underpinnings of fair trials in this country. Once a prosecution is 'active' - which usually means once a suspect has been arrested or charged - the Act prevents the media publishing anything which might pose a "substantial risk of serious prejudice" to the court case which we expect to follow.

The Today programme logoHow do we square that with the way that we, the media, have covered the news that Karen Matthews, Shannon Matthews's mother, has been charged with perverting the course of justice?

Is the sort of detail that a number of newspapers are carrying - and we in the BBC are to a lesser extent - compatible with her right to a fair trial? In other words, is there a danger that the twelve members of the public who'll end up sitting as jurors if the case goes ahead have already made up their minds about Karen Matthews's guilt or innocence?

I've been doing some research into this area of the law recently, and a couple of interesting trends emerge.

Karen Matthews leaving Dewsbury Police Sation ahead of her court appearenceFirst, judges seem more and more willing to believe that juries will disregard press coverage that they might have seen around the time that someone is arrested. In fact, they think jurors will probably have forgotten about it by the time the case comes to trial.

It's what's known as the 'fade factor'. If it exists - and no-one really knows because there's been no research to speak of - it might mean that a fair trial can take place in a few months' time regardless of what's said or printed now.

But it's got a serious downside, of course. If you're the suspect in a case, and you have to sit around for months, possibly on remand, while the rest of us forget about all those details which were published when you were arrested, that might not seem entirely fair to you.

The second interesting phenomenon is the effect of the internet. At the moment the law is based on the notion that we can create the conditions for a fair trial by denying people certain important pieces of information. So, for example, if people have previous convictions, we don't report that after they're arrested.

But what if you can't deny people that information any more?

If you're a juror sitting on a high-profile criminal trial your curiosity might lead you to check whether the alleged villain in the dock has a long criminal record. You could find that information very quickly on the internet - and, remember, it's information which would have been published perfectly properly at the time.

Can we stop that happening? Judges will certainly warn jurors not to do it, but that's no guarantee. Ministers have suggested that news organisations should take down their archive pages to stop people accessing information that might currently be considered prejudicial, but those pages are mirrored and cached all over the place. The idea of removing old news pages from everywhere on the web seems deeply impractical.

So what we have now is an Act based on two suppositions, one of which is unproven, and the other of which is increasingly undermined by the internet.

The first is that, within the jury room, jurors might be swayed by things they've read, seen or heard in the media. There's no real evidence that this is true - and judges, increasingly, seem to take the view that juries are capable of making up their minds based on what they've heard in court.

The second is the whole idea that we can withhold entire categories of information to make a fair trial possible. The internet does away with that: if 'prejudicial' information has been published, we can't un-publish it.

This isn't an argument for a press free-for-all. If everything we report can resurface in this way it's even more important that it should be fair and accurate.

But it does mean, I think, that whether we like it or not we have to trust juries more than the current law implies. And probably it requires a new law to do that.

Comments

  • 1.
  • At 10:51 AM on 10 Apr 2008,
  • David Cooper wrote:

I have no problem with trusting jurors to base their decisions on the evidence at hand. However, what does need to change fundamentally is the attitude, and style of coverage, of some of the media.

Some of the things I have seen written about this case over the last few days border on branding her guilty before charges had even been laid. Like it or not, human beings absorb stuff like this, and no matter how objective you think you are, if you have been reading a constant stream of stories in the media to the effect that the defendant is guilty that will have an effect.

The media needs to take a step back and ensure that, in the words of Joe Friday, they report "just the facts".

  • 2.
  • At 11:14 AM on 10 Apr 2008,
  • Tim Weakley wrote:

One thing that worries me about the Contempt of Court laws is that in some case of alleged official corruption or gross negligence the authorities could bring charges against some minor official and then say 'We can't discuss the matter further or answer questions because it would prejudice the coming trial'. Then when the fuss has died down and the media are on another hue-and-cry, the case would be quietly dropped. I said 'Could'; has it ever happened?

  • 3.
  • At 11:47 AM on 10 Apr 2008,
  • John wrote:

I have always been of the opinion that details of people who are arrested and charged should be kept out of the public domain. As far as I am concerned, once the person has been convicted or has a criminal record then by all means it should be permitted to be in the public domain. This would solve the problem that people have in terms of the idea there's no smoke without fire. That is to say even when acquitted there is always an element of doubt in some people's eyes. Moreover, it avoids the sensationalism of trials such as the OJ Simpson and it may even avoid possible miscarriages of justice.

  • 4.
  • At 12:40 PM on 10 Apr 2008,
  • Geraint wrote:

I am sure that juries can be persuaded to consider only the evidence put before them. The problem is that the rest of the public do not get to see that evidence. Instead, we get sensationalist reports from a media that believes in "no smoke without fire" and "guilty unless proven innocent" (in which case it will rarely be reported).

As the poster above says, if someone has not been convicted, there is no need to put their name and private lives on public display. Report on people who have been convicted, not those who have only been arrested or charged.

  • 5.
  • At 01:31 PM on 10 Apr 2008,
  • Steevie fae Dundee + Glasgow wrote:

Whilst I take the point about stuff already being in the Public domain historically, I'm really perturbed about all this speculation going
on in the press etc. When did we stop waiting until the "facts" of
a case were presented in a Court of law as opposed to the court of
public opinion ? Or "a source said...." How can any of the suspects get a fair hearing,
assuming they plead "Not Guilty" and go to trial? I also agree with John at Numb 3 about suspects being kept out of the public domain until after trial. That includes naming suspects in "high emotion" cases such as rape. People acquitted never get their "name" back.

But back to the current furore(s) in the press. What is next if we don't collectively clamp down? Are we going to end up down the route as per the USA where, just as bad, defendants end up pleading their case / defence in the newspapers before their trial (ala the current O J Simpson case where one of his co-denfdants spoke out against him with his "facts" on the case)

It is said we get the Press we deserve and A propos nothing, is it indicative of "thick Britain" needing led by the nose or our collective Schadenfreude that the Daily Mail Wed 9th April on their front page (in Scotland anyway) felt obliged to "circle" the handcuffs on Karen Matthews which looked obvious and prominent enough to me.

Maybe it's just me......

One only has to look at how the McCanns were treated by the media after they were made arguido in Portugal to wonder at the ability of the "public" to remain uncontaminated.

It's strange, though - the "right to know" doesn't actually exist.

MSM has one fatal flaw - it thinks it (the media itself) trumps everything, even an individual's rights, in its quest for this mythical right.

Unfortunately, the general population has become so dependant on the media to tell it what to do, how to think, and what to buy (the purpose of the media now), a jury may well be contaminated.

But, they might be contaminated for a host of other reasons - concentrating on MSM only shifts the "blame" for contamination onto an "easy" target.

The media is simply one more factor that can sway a jury away from the facts towards opinion. More legislative bloatlaws won't do anything other than paper over the crack that is - jurors are human too.

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