Fair trial and freedom of the press concerns how to balance the right of a free press and the defendant’s right to a fair trial. News reporting on judicial proceedings helps the public understand the legal procedure better and contributes to the public’s right to know about the working of the justice system. The media play an important watchdog role in monitoring the administration of justice. However, the news media sometimes misrepresent court trials and mislead viewers and readers. This kind of inaccurate media coverage might affect jurors or judges in such a way as to prejudice their supposedly impartial judgment.
The idea of balancing the right of the news media to cover judicial proceedings with the right of the accused to a fair trial has been incorporated into a number of international conventions and national constitutions. For example, the European Convention on Human Rights, while guaranteeing freedom of speech and of the press, protects the right of the accused to a fair trial. Its Article 6(1) states that the press and public may be excluded from all or part of a trial “where the interests of juveniles or the protection of the private life of the parties so require” or “where publicity would prejudice the interests of justice.” The International Covenant on Civil and Political Rights also regulates access of the press to a trial when it is necessary to maintain public order, to protect national security and to prevent the prejudice from publicity. In the US, the First Amendment to the federal constitution on a free press collides with the Sixth Amendment on a fair trial. The UK, which does not have a written constitution, relies on a criminal statute to regulate the media coverage of a trial. The Canadian Charter of Rights and Freedoms places freedom of the press and fair hearing by an independent and impartial tribunal on an equal footing.
Prejudicial Publicity and Prior Restraints
In jury trials, jurors must consider only the facts relating to the defendant’s guilt or innocence in the specific case before the court. But the media sometimes report a defendant’s prior criminal records or his confessions that may not be admitted into evidence during a trial. Although jurors are more likely to be influenced by the prejudicial media coverage than judges are, judges are not entirely free from a possible media impact.
Over the years, the European Court of Human Rights (ECHR) has ruled on prejudicial publicity as an issue. The ECHR case of Sunday Times v. United Kingdom (1979) arose when the House of Lords affirmed an injunction against the Sunday Times of London on the grounds that its news reporting concerning children deformed by thalidomide would lead to a “trial by newspaper.” The ECHR held that the injunction against the Sunday Times was a violation of the European Convention on Human Rights, because the newspaper stories dealt with a matter of public concern, and it would not substantially undermine the authority of judiciary. The ECHR’s 1997 decision in Worm v. Austria addressed whether a publication during a criminal trial might exert an influence on the members of the trial court. Worm, a journalist, was convicted under the Austrian Media Act for creating a “prohibited influence on criminal proceedings” with his article about the trial of a former finance minister. The ECHR agreed with the Vienna Court of Appeal that Worm’s conviction was necessary for maintaining both the authority and the impartiality of the judiciary in Austria.
In the past, the common law in Canada emphasized the right to a fair trial over freedom of expression. But the Canadian Supreme Court, in Dagenais v. Canadian Broadcasting Corporation (1994), held that the common law on the right of the accused to a fair trial was no longer sustainable under Canada’s 1982 Charter of Rights and Freedoms. The court ruled that the Charter principles require the rights both to a fair trial and to a free press to be respected, without a hierarchical approach. In considering a publication ban because of the threat to a fair trial, the court suggested that trial judges should ask (1) whether the ban is necessary to prevent a real and substantial risk to the fairness of the trial; and (2) whether the salutary effects of the ban outweigh the deleterious effects to free expression. Further, even if the ban were aimed at preventing a substantial risk to a fair trial, it could not be upheld if alternative measures were available.
In overturning Dr Sheppard’s conviction for his wife’s murder, the US Supreme Court in Sheppard v. Maxwell (1966) criticized the state trial judge for failing to control the courtroom and to take proper measures against the prejudicial publicity. The court suggested several fair-trial remedies, which included: (1) a continuance to postpone the trial (adjournment); (2) change of venue (moving a trial to a new location); (3) change of venire (changing the pool of potential jurors); (4) admonishing the jury; or (5) sequestration of the jury.
Gag orders were widely used against US media in the early 1970s, although the Sheppard court did not suggest a gag order. In Nebraska Press Association v. Stuart (1976), the US Supreme Court addressed the validity of gag orders. Chief Justice Warren Burger, writing for a unanimous court, stated that before issuing a gag order, the trial judge should consider three factors: (1) the nature and extent of pre-trial news coverage; (2) the availability of other measures to mitigate the prejudicial publicity; (3) the effectiveness of the gag order. Unfortunately, gag orders are occasionally abused to silence the media publication.
When a reporter disobeys a court order or shows disrespect for the judicial process, a judge can use the contempt of court proceedings. In England, the Contempt of Court Act allows judges to use contempt of court when news reporting creates a substantial risk that judicial proceedings will be seriously affected. Sometimes criminal contempt might be used by courts to punish criticism or commentary about judges’ work. But the US Supreme Court, applying the “clear and present danger” test, ruled in 1941 that judges could punish commentary on pending cases only when such publications presented an imminent and extremely serious threat to justice. In contrast, Bangladeshi journalists got a jail sentence for contempt of court when they published stories about a judge’s secret conversation with a party in the lawsuit in 2002 and about a judge’s fake qualification in 2005.
“Open Justice” Principle
Open justice is a basic principle in Anglo American judicial proceedings. In Scott v. Scott (1913), Lord Atkinson of Great Britain said that, even if a public hearing would be painful and humiliating, it should be endured. He reasoned that public trial is, on the whole, “the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”
But this open justice principle does not mean that every trial should be open to the public or the press. In the US, the Supreme Court held that the public and the press have a constitutional right of access to criminal trials under the First Amendment. Despite the right of access, however, the court said trials could be closed under certain extraordinary circumstances. For example, grand jury proceedings and juvenile proceedings are closed as a rule. Also, civil proceedings can be closed when a compelling interest exists and the closure is narrowly tailored to serve the interest. The German Constitutional Court recognizes a right of reporters to attend criminal trials, but the right to obtain information about the judicial process may be limited under the Basic Law.
Cameras in the Courtroom
Another issue relating to access to trials is whether cameras should be permitted in legal proceedings. The presence of cameras in trial might disturb the parties, witnesses, and even jurors. On the other hand, the public’s attendance at judicial proceeding might be best served by a complete audio and video account, which requires cameras in the courtroom. In Chandler v. Florida (1981), the US Supreme Court held that the presence of television cameras does not inherently violate a defendant’s constitutional right to a fair trial. In the years following Chandler, all states developed rules on allowing television or still photographic coverage of some court proceedings. With regard to US federal courts, only a few circuit courts allow electronic coverage of trials.
Broadcasting of trials in other countries varies. In France, during the preliminary stage of a judicial investigation, information likely to put pressure on witnesses cannot be published. Besides, during court proceedings, French courts prohibit photographing, filming, and recording of trials. In England, the Criminal Justice Act bans the taking of photographs or drawing sketches of any person involved in trial. But Scottish courts have permitted the recording and broadcasting of judicial proceedings under strict conditions and restrictions. After the BBC sought permission to film the Lockerbie bomb trial, the Scottish appeal court proceedings in 2002 were broadcast live in English and Arabic by television and on the Internet. The International Criminal Tribunal for the former Yugoslavia (ICTY) also offered real-time video and audio coverage of its proceedings in three courtrooms through its web page.
In South Africa, the South African Broadcasting Corporation (SABC) sought permission to broadcast live (on both television and radio) the entire proceedings involving a corruption. The Supreme Court of Appeal rejected the request because televising the trial would cause undue stress to counsel and judges and might prejudice the defendant. The Constitutional Court ruled in 2006 that the Supreme Court of Appeal was within its discretion in regulating its own process when it refused to allow the broadcasting of the corruption trial. This South African case shows that balancing the media’s right to a free press and the defendant’s right to a fair trial remains a challenging issue, which reflects each country’s social, legal, and cultural backgrounds.
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