Censoring Sensationalism - Attorney General talks tough on Court Reporting

As yet more suspects are arrested under protection of terrorism legislation and the Soham murder trial gets to hear Ian Huntley’s version of events, the media have been reminded of their responsibilities in reporting such matters.

Addressing editors at a Newspaper Society conference, top Government lawyer Lord Goldsmith fired a warning shot at those producing the nation’s front pages. With some 70 complaints being investigated by his department this year, the Attorney General said he had “a good deal of concern” about the balance being struck in the reporting of court cases.

While the public has a right to be informed about the administration of justice and the press is entitled to certain freedoms in relation to the manner in which it fulfils its role in informing the public, Lord Goldsmith’s cause for concern lies with a third and competing right – that of a defendant to have a fair trial.

No matter how serious the crime, whether someone is charged with planning to bomb innocent people or having murdered young children the law prescribes that they should be entitled to a fair trial. No matter how repulsed the public is about such crimes or how convinced they may be of a suspect’s guilt, such repulsion or conviction should not be fuelled by the manner in which the media reports the facts of these cases to its public. The law should be left to deal with those that are charged with breaking it and to do so properly, it requires that its work is not compromised by juries becoming prejudiced or witnesses tainted through the media’s treatment of the crime, the case or the criminal.

This poses problems for the interaction between the pubic, the media and the law. A satellite viewing, internet connected public demands more from its 24-7 media. Headline news does not satisfy the appetites of readers, viewers and listeners who want ‘exclusives’, ‘full coverage’, ‘behind the scenes reports’ and pictures beamed live and direct into their homes and workplaces. If we can watch live footage of a missile flying towards a target thousands of miles away, why shouldn’t we be able to know more about the crimes committed closer to home?

For its part the media is both commercially and consumer driven towards giving the public what it wants. But unlike video-on-demand the reporting of court cases is not freely for sale and should not be used to provide free fodder for tomorrow’s front pages. It is this latter point that Lord Goldsmith thinks the media needs reminding about.

He referred to some recent reporting as “frankly unacceptable” and justified his cautioning of editors in the wake of the Grosvenor House rape allegations on the basis that printing pictures of the accused where their identity was in question may have materially prejudiced the victim’s identification of her attackers. A valid point in law but does not address the fact that the alleged attackers had already openly told their version of events to the press, had their girlfriends vouch for their character and could be readily identified from their football team pictures on numerous web sites. Meanwhile the victim herself instructs a leading PR agent to tell her story to the media.

The law as it stands and is provided for in the 1981 Contempt of Court Act does not adequately provide for an increasing public desire to tell their stories to the press. The media is caught in the middle. On the one hand there is a public who want to know and have a desire to tell while on the other, there are laws that are designed to prevent certain things being known or told. What responsible journalism demands is getting the balance right in this increasingly difficult equation. The public’s desire for news and the media’s ability to deliver it are exceeding the law’s prescribed boundaries for regulating this information exchange. This can be seen beyond the confines of the courtroom but applies equally to other contentious areas such as privacy and breach of confidentiality to which the Queen’s recent upset at The Mirror bore testimony.

To return to Lord Goldsmith’s concerns about responsible reporting, he acknowledged the media had a difficult job to do in getting the balance right. Existing laws may not adequately provide for increasing demands for free expression but they remain a necessary constraint to ensure the integrity of the administration of justice remains in tact and the conduct of fair trials is not compromised.

Preventing trial by media should not prevent the media from reporting on trials. So to the extent Lord Goldsmith may be seen to be seeking to censure sensationalist court reports, his reason for doing so is to address the imbalance between what the public has a right to know and the courts are willing to tell. The media is caught in the middle but in delivering his 9-point guidelines, Lord Goldsmith has still left the balancing act to the media. That has to be better than issuing even tougher legislation. Responsible reporting will ensure things remain this way.

Lord Goldsmith’s guidance cautioned editors about contempt in relation to the following 9 points:
1. Reports that assume guilt of defendant

2. Reports that assume outcome of preliminary hearings

3. Reports that contain information that may hamper police investigation (photographs and ID parades)

4. Reports that contain detailed accounts of circumstances leading to criminal charges in question

5. Statements based on assertions of fact presented in advance of evidence

6. Material that would be inadmissible in a criminal case but could stick in the mind of a juror

7. Reports containing details of other proceedings in which defendant or witness has been involved

8. Reports containing information or comments about witnesses that may undermine their evidence

9. Reports which breach an order

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