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    Monday 4 June 2007

    Contempt of court?: the growth and growth of trial by media

    The Guardian has a very interesting piece (originally published in the British Journalism Review) by Bob Woffinden on the abuse - or rather the disregard - of at least the spirit of contempt laws by news managers working for politicians, the police, the Crown Prosecution Service and others. It outlines a number of recent examples, which when collected together in this way make the point forcefully.

    He also notes the recent announcement by the Attorney General of the intent to conduct research into the premises of the existing contempt laws (1,2), that is the presumption that media comment will influence how jurors are disposed towards defendants. An alternative, perhaps more pragmatic approach - more familiar in North American jurisdictions - is to respond to actual rather than hypothetical cases of influence; to focus on cure and not prevention.


    Anonymous said...

    What's your view on Goldsmith's call for more research? There seems to be a substantial body of research already that contradicts his claims in the Reform Club speech. Here's my shot from the hip. Also Woffinden doesn't address the issue of contempt being used to effectively blanket proceedings in secrecy...

    Anonymous said...

    Interesting to compare contempt in Portugal as raised by the Madeleince McCann case. The UK media couldn't believe that the Portuguese police would feed them a stream of information about suspects and arrests, a service which they have become used to in the UK. Portuguese journalists told me that they think their contempt laws are extreme but they are an intersting attempt at prevention rather than cure.

    Andrew Scott said...

    To my mind the question is what further research would be aimed at demonstrating, or what policy prescriptions it should be intended to support or undermine:

    (1) That preemptive contempt laws (such as those currently existing) are (or are not) necessary, or should (not) be more rigorously applied. Adrian has set out details of a number of studies that suggest that pre-trial publicity can have an impact both on jury predilections and on their propensity erroneously to recall elements of such publicity as though they had been presented in evidence during the trial. This is interesting and - at first glance - persuasive, and suggests that the status quo rules (perhaps more widely applied) should be retained. Nonetheless, at a stretch (and speaking in some ignorance of the parameters of the research conducted) it may be that there remains a need to replicate such work in the context of the English/Welsh jurisdiction. That is, there may be a need for further, contextually-specific work aiming to prove or deny that preemptive contempt laws are necessary, or to determine the circumstances in which they should be applied [or presuming the ignorance of what Goldsmith had to say, at least a literature review to show the state of the art]. From a political perspective, I don't imagine that any policy change or reaffirmation could plausibly be based on the results of the scattered work cited. Of course this justification for more work may be more down to political reality than the state of scientific knowledge.

    (2) Alternatively, and following on from a putative recognition that the media are unlikely willingly to pull back from current approaches to big stories and/or that there are reasons to expect that existing laws will not be applied rigidly, there is arguably a need for prescriptive work that can guide what neutralising mechanisms (jury interrogation / geographic relocation of trials etc / jury sequestration, or even reneging on the use of juries) might be used, and in which cases they should be used. Here the assumption is that existing rules are undesirable / unworkable, and that alternative approaches aimed at correcting problems are preferable.

    Alongside the headline questions, the alleged strategic political use of existing laws is a concern, the possibility of greater openness in the reporting / televising of proceedings is in turns attractive and worrying, and the dangers of 24 hr streaming of over-excited, facile and ignorant comment are seemingly obvious. These are big issues and it is challenging to grasp their repercussions even intuitively. Unless there is something to be done about them, however, additional research would seem besides the point.

    Anonymous said...

    Good points. I think we're stuck. We can't go back to an age of pre-search engine innocence, but it seems likely that pre-trial reporting will influence jurors. But no reporting at all risks justice behind closed doors - which is potentially worse. Politically the tide is definitely moving towards relaxation of contempt - when it suits!

    Andrew Scott said...

    Greenslade has an interesting post (with comments) discussing the conviction of Barry George for the murder of Jill Dando and the role of the media therein. He is commenting on a piece by Brian Cathcart in theNew Statesman .

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