It is rare indeed to hear an English judge, presiding over a case described as the “Trial of the Century”, explain to the jury that “in this case, in a way, not only are the defendants on trial, but British justice is on trial” as well.
Mr Justice Saunders is the legal referee in an extraordinary case taking place at the Old Bailey featuring two former editors of the News of the World who deny plotting to hack phones and illegally paying public officials for information. But the trial of former News International chief executive Rebekah Brooks, and Andy Coulson, the former director of communications for the prime minister, David Cameron, and others is part of an intense political and global context.
In the post-industrial information age, the speed and scale of cyberspace means that past and present media information is retrievable in an instant by digital search engines. Smart phone technology makes digital detectives of us all. Online social media makes us all instant global publishers.
How can the English legal system create an effective firewall around the integrity of the proceedings? How can it ensure that all eight defendants are not denied their rights under Article 6 of the European Convention of Human Rights?
This states that “everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law”. It also asserts: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Fair trial vs open justice
There is a recognition that “open justice” is part of the right to receive and communicate information enshrined in Article 10 of the convention. But this is qualified by the need to protect “the rights of others” and “for maintaining the authority and impartiality of the judiciary”.
Human rights law arises out of, and remains in conjunction with, English common law principles where there is a public interest in fair trial as much as a public interest in open trial. In Britain, rights and interests are balanced equally with each situation judged according to the circumstances and an intense focus on the facts. The evolving unwritten constitution in Britain has never recognised that freedom of expression is either absolute or carries priority.
Unlike the United States, British judges have wide powers to control reporting outside their courtrooms. The 1981 Contempt of Court Act means that Mr Justice Saunders can postpone reporting of any proceedings heard in the absence of the jury. He also has inherent common law jurisdictional powers to control the proceedings before him. Other legislation and precedents grant him further powers of prohibition and postponement. The 1981 legislation means that the courts have injunctive powers to prevent any substantial risk of serious impediment or prejudice to the administration of justice.
The judge told the jury: “It is absolutely vital that you decide this case solely on the evidence and the arguments that you hear in court.” He briefed them on the unprecedented amount of publicity about the case, some of which he described as “offensive and demeaning” to some of the defendants. He dismissed the current cover of Private Eye as something to ignore as it was “a joke in especially bad taste”.
The judge directed the jurors not to discuss the case with anyone outside their group, or use social media such as Twitter or Facebook to talk about it. They were told about successful prosecutions for contempt of court of jurors who had defied the warnings given by trial judges.
Competing rights
The First Amendment of the United States’ written constitution states that congress shall make no law “prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press … ”.
This means that Twitter, social media, mainstream media and anything anybody wants to say about any kind of legal case being determined by jury anywhere in the US jurisdiction cannot be prosecuted or banned by court order. No American judge has any power to control the speech of anybody beyond his or her courtroom walls. Since the current trial at the Old Bailey is big news in the US, the main base for Rupert Murdoch’s global publishing operations, US journalists must be experiencing something of a culture shock.
The 6th Amendment to the United States constitution states that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
But guaranteeing the impartiality of the jury cannot be at the expense of the First Amendment. The US system at state and federal levels uses a number of devices to minimise prejudice: (1) Continuance – delaying trial until prejudicial publicity has died down:(2) Change of venue (3) Intensive voir dire – questioning members of the jury panel to determine whether they have been prejudiced by media coverage; (4) Jury admonitions – instructing jurors not to read or listen to media coverage; (5) Sequestration – providing for a supervised location for the jurors throughout the trial to shield them from news reports.
The journalists covering the current Old Bailey trial have a legal duty to report fairly and accurately and with strict compliance to contempt laws that would be unconstitutional in the USA. The British system uses the devices (1) and (4) and sometimes (2). But avoids (3) and (5). I am not convinced the UK could fully eradicate the risks of prejudice by adopting all of the US measures. It is a geographically small country with homogeneous media.
Mr Justice Saunders, like all British criminal judges, exercises an authority that calms the social atmosphere and gives the jury space to try the case as the real experts who are following the evidence day by day. Much better that professional and social media suspend their propensity for propaganda and report what the jury hears and sees and the right to fair trial is sustained and endures.