The global public loves to read about savage slayings. The tragic death of the innocent may help sell newspapers but manhunts, police chases, arrests and then the judicial process is of enormous and legitimate interest to the public.
Death is not local news: as can be seen by the enormous and worldwide media coverage of cases such as OJ Simpson, Mark Bridger (jailed for life for the murder of April Jones) Stuart Hazell (a minimum of 38 years in prison for the murder of his partner’s granddaughter 12-year-old Tia Sharp) and the ongoing Oscar Pistorius case in South Africa.
In the digital age worldwide publicity stretches the protections meant to be afforded to defendants to have a fair trial to the limit. And foreign publishers discussing cases in other jurisdictions need to be alert as they are likely to have assets (such as a news bureau) that could be reached and seized by a prosecutor (or Attorney General) if they overstep the mark.
Oscar Pistorius was in court recently charged with murdering his girlfriend Reeva Steenkamp. Such serious cases are dealt with in the High Court in South Africa but not before a jury but (usually) a single judge and two lay assessors (often legal experts such as advocates, academics or retired magistrates who assist the judge in answering questions of fact (not law)).
So it may have been thought by the world’s media that despite the intense coverage of the case the absence of the jury system meant that anything was acceptable. There has been no shortage of speculation, background information, rumours and even interviews with potential witnesses. But in June the South African magistrate warned against ‘trial by media’ and lambasted the media for threatening the ‘sanctity’ of South African courts. Magistrate Daniel Thulare criticised the media, including those overseas, for threatening the ‘fountains of justice’ and warned of the risk of contempt of court. But he also raised the issue of scandalising the court system in the Republic. He invited the national prosecuting authority to ‘seriously look’ at the coverage.
It is not necessarily the most dramatic publications that can cause the most damage to the defence case or the prosecution case (both must be protected to allow for a fair trial). Sky News obtained images of the bathroom where Reeva Steenkamp was fatally shot, distressing pictures showing a trail of blood and bullet holes in the now opened door. There have already been criticisms of the South African police (Warrant Officer Hilton Botha was taken off the case for potentially contaminating the evidence) but Sky News reported that two different sources have claimed that other police officers are being investigated after the alleged disappearance of one of the athlete’s watches from his house. The suggestion of theft by the police is a serious one and, perhaps more importantly, not one that might be allowed to be adduced in the case by the defence unless there was hard evidence to back it up.
Contempt of court is not just (to use a British definition) about there being a substantial risk of serious prejudice to criminal proceedings. Press coverage of a high profile death of a student in Bristol in December 2010 focused on the supposed character of someone who came temporarily under suspicion.
He was not charged (and the real killer pleaded guilty) but newspapers were fined in 2011 when the court focused on the statutory notion of ‘impeding’ rather than simply on prejudice. The offending coverage was described as ‘vilification’ which could, for example, prevent eyewitnesses from coming forward (to the potential detriment of justice). The UK’s contempt laws are considered strict, especially when measured against the USA, but most states are as tough as us.
Concepts such as scandalising the court seemed to have been fading into obsolescence in an era of freedom of expression but various Commonwealth jurisdictions have highlighted the need to protect the authority of the law which rests on public confidence, and the importance that the confidence should not be shaken by baseless attacks on the integrity or impartiality of courts (or judges). The powers of the court to defend themselves should never be underestimated! Fines, even imprisonment, could be used in a variety of jurisdictions to ensure that the public was given at least a relatively fair and accurate impression of the workings of its courts.
Publishers may have to consider not making their reports available in jurisdictions such as South Africa (and the UK) if they want to ignore the right to a fair trial.
Jury trials were abolished in South Africa in 1969 and, understandably the South African authorities are keen to present their system of justice as being fit for purpose and, so far, the openness of the court system (cameras in court to film Oscar Pistorius before the evidence commenced or judgment was given, interviews with investigators and so on) has been regarded by many as sending out a positive message. South African judges may not want this good work destroyed by ill informed speculation, the leaking of confidential or distressing images, the interviewing (or rubbishing) of potential witnesses and publication of daft if damaging conspiracy theories.
Judges can have other remedies: in Barfod v Denmark a person who made allegations of Greenland bias against two lay judges was successfully prosecuted for defamation of character. The European Court of Human Rights subsequently said in 1989 that the state had a legitimate interest in protecting the reputation of the judges.
Fair and accurate reports of foreign cases are protected in the UK from defamation claims by qualified privilege. But such reports need to be fair and accurate – there is no protection for those who make wide and unsubstantiated claims from libel suits.
Contempt of court is criminal, and the reach of the police is long. Whilst journalists might not be too bothered about judicial criticism or even a fine for the company they could be unpleasantly surprised years later when arrested at Cape Town airport at the start of their holidays.
Duncan is head of the media and entertainment team at Charles Russell. He has particular expertise in the television industry. His areas of expertise are libel, copyright, contempt of court and confidentiality issues. He writes regularly for the Guardian and discusses media law issues on national radio and television