As the clampdown on terror and quest to bring those responsible to justice continues, the media are being warned that their high-profile exposés of the suspects could be hampering the legal process. As the Sun reliably informed us, we may have ‘Got the Bastards’ but now that we have, we have to respect their human rights and ensure that they are afforded a fair trial.
This seems perverse given that those suspected of terrorist atrocities have shown no respect for the human lives taken and no regard for the society and justice process that is meant to deliver a fair trial. This poses a dilemma for both prosecutors and the press who may share the same aims but have to operate under different game plans in a bid to bring terrorists to justice.
Liberty and other human rights groups are concerned that in the wake of ongoing arrests and the interrogation of the suspected bombers, media coverage may be prejudicing their rights to fair treatment and a fair trial. They have called upon the Attorney General, Lord Goldsmith to formally caution the media. His office has commented that they are already monitoring media output and will ensure that any trials are fair.
So what’s unfair about informing the public about the successful capture of those believed to have carried out bombings? While it would appear that at least one of the suspects was able to slip into the country on a bogus asylum application and out on the luxury of Eurostar, once someone is arrested for an offence, the law of contempt applies.
The 1981 Contempt of Court Act provides that from the time of arrest legal proceedings are deemed to be ‘active’ and publishing something that could create a real risk of prejudice in relation to these proceedings amounts to contempt. It doesn’t matter if one intends what is printed to be prejudicial, the fact of publication constitutes the offence. Even where proceedings are not yet active, an offence of common law contempt may still arise if one intentionally publishes something prejudicial when proceedings are imminent or can be contemplated.
In other words, now that suspects have been arrested, the media should be careful what it prints or broadcasts.
To refer to Hussein Osman, or ‘Hamdi Issac’, or whatever other name he may choose to go by as a ‘suicide bomber’ or ‘terrorist’ could prejudice his right to a fair trial and even be contempt of court.
So what is the law trying to protect? The rationale behind contempt laws is to ensure that the justice process is not impeded and that those appearing in court can be assured a fair trial free from prejudice. Its all about equality before the law and in criminal cases, being innocent until proven guilty.
The real concern in the context of terrorism is that the jury, whether they read the Sun or get their news from Google, will have been fed so much information by the media that they are convinced of a suspect’s guilt before their trial begins. No matter what gets printed in the press, when it comes to court, the prosecution still has to make out its case against the defendant. In this context, it will be their evidence and argument before the court that should convince the jury whether to convict or acquit. So why are we concerned? If the system works then the jury will make their decision based on what they’ve heard in court rather than what was printed in their papers.
What the legal system is perhaps not prepared to admit and what human rights lawyers are concerned about are two potential pitfalls in the system. First, the problems inherent in the jury system, no matter how much a juror will ignore the media, when presented with a trial of terror, it will be very difficult not to be emotive. So they may decide to convict on evidence to which they have reacted in the same way as they did the reports they read in the press. While there may seem nothing wrong with that, this leads to the second serious pitfall. If convicted, the suspect may then try to appeal on the basis that they have not had a fair trial. They would argue that because of the media coverage and emotions of the public, there is no way the jury could have been fair.
This is precisely what Hussein Osman is trying to do as he fights extradition from Italy. His lawyer, Antonietta Sonnessa has already confirmed this amid claims that his intention had only been to scare and not kill. So media reports about him being one of the bombers who tried to kill could be seen as prejudicial when it comes to the finer points of legal argument. It remains to be seen how effective the European arrest warrant is in bringing him back to Britain. It will not just be the warrant system that is tested but the public’s faith in the process and politics that allow free movement of terrorists but restricts transfer of suspects.
While we worry about contempt in the UK, Italy’s media seem to being fed a string of confessions from Mr Osman. What would be contempt here is not there and this poses yet a further challenge for both the press and the process. It is perhaps ironic that he wants to stay in Italy where evidence that could not be printed in the UK is hitting the headlines.
Whether viewed under European, UK or Italian legislation, the law still needs to find a way to catch up with reporting crime in the digital age. Osman was trapped by tracing his phone calls but it could be contempt for a UK news organisation to publish certain details via WAP over the same network. While we are busily introducing successive lots of terrorism laws, we have not sought consensus on how such terror should be reported.
Technology means that the public is now far more involved with the media. It was the public who provided most of the images in the wake of the London bombings and to whom the police also appealed for footage.
Seeing suspects cornered on their balcony sends out an important message that those responsible for terrorism are being caught. What is needed is a measured rather than muted response from the media. While dozens are detained in orange suits in Guantanamo with little evidence or information, the evidence and cctv footage in relation to the London suspects provides for more certainty as to their actions and identity.
For a public subjected to terror and concerned about safety, the semantics of the legal system offer little solace and make little sense.
There may be a need to temper the views expressed by some of the press but that should not be at the expense of delivering the news and information which the public has a right to know. The public may not have been involved in the political agenda that is being blamed for terror but they are involved in the carnage such terror has created. This is creating shared experiences and consciousness which result in a new level of coverage and debate in the media. It would be wrong to restrain such engagement. While the Attorney General keeps a watchful eye on the UK press, its time to review the laws under which it operates to ensure that a free press can operate alongside a robust legal system that defends both the right to fair trials and free expression in equal measure.
Antonietta Sonnessa HERE
The arrest in Italy HERE
Contempt of Court procedural guide HERE
More on the Act HERE and recent case HERE