Nov 04

Ah, the Irony –The News of the World Trial: How the Press May Not Get a Fair Trial In Light of … the Press

On Tuesday, October 29th, a jury of nine women and three men was sworn in at London’s Old Bailey by The Honorable Mr. Justice Saunders, a High Court Judge of the Queen’s Bench Division.  Their task:  to decide the guilt or innocence of Rebekah Brooks, Andy Coulson and six other ex-News of the World employees on charges including conspiracy, phone hacking, bribery, and perverting the course of justice, and, while doing so, disregard the very thing that brought them to the jury box – the press.

During the course of his preliminary instructions to the jury, Mr. Justice Saunders observed:

In this case, not only are the defendants on trial, but British justice is on trial.  It is a central principle of our system of trial by jury that you reach your verdicts only on the evidence heard in court. … There has been a great deal of publicity about this case, perhaps an unprecedented amount. … The internet is generally not controlled and often fuelled by opinion and speculation.  A great deal of information is imparted and received by people through Facebook and Twitter … [and a] significant amount of [this] publicity has been inaccurate and misleading …[and/or] offensive and demeaning to some of the defendants.  A lot is ill-informed and most of it is abusive.

See BBC, Phone-Hacking Trial Judge Says British Justice on Trial, BBC News – UK (Oct. 29, 2013); Rebecca Camber and Vanessa Allen, British Justice on Trial:  Judge’s Warning to Jurors at Start of Phone Hacking Case, Daily Mail Online (Oct. 30, 2013).  One example, said Mr. Justice Saunders, is the satirical cover of Rebekah Brooks on the current edition of Private Eye magazine, which he found to be a joke “in especially bad taste.”

In light of such press, Mr. Justice Saunders warned the jurors not to discuss the case with anyone, not to read about the case in the broadsheets or tabloids, not to use social media such as Twitter or Facebook, and not to access information about the case through search engines such as Google.  He stated that previous jurors who had broken similar rules had been jailed for contempt of court and sent to prison.  See Camber and Allen, supra.

This is by no means an empty threat.  While U.S. courts typically attempt to thwart prejudice from extensive publicity in high-profile cases by “control[ling] the jury” through pre-trial changes of venue, voir dire, and/or peremptory challenges, English courts instead try to “restrict the flow of information” immediately prior to and during trial.  Joanne Armstrong Brandwood, You Say “Fair Trial” and I Say “Free Press”:  British and American Approaches to Protecting Defendants’ Rights in High Profile Trials, N.Y.U. L. Rev. 1412, 1431-32 (2000).  Under the common law doctrine of contempt of court, English courts have the power “to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice.”  Id. at 1432.  This doctrine has traditionally been applied to limit the information distributed by the press.  Jurors, however, are not immune; over the past few years, numerous individuals have been incarcerated for speaking to the press regarding, using social media to comment on, and doing internet research on ongoing cases.  See, e.g., John Aston, Two Jurors Jailed for Contempt of Court Over Use of Internet During Trials, The Independent (July 30, 2013).

While this threat of jail time will undoubtedly shape the jurors’ behavior and diminish the potential prejudice from the media frenzy surrounding the case, the defendants may still – thanks to the press – struggle to receive a fair trial.  In light of British tabloids’ scandalous history, the Brits have long had the perception that their journalists are crooked and disingenuous. As Humbert Wolfe, a British poet, noted:

You cannot hope
to bribe or twist
thank God! the
British journalist.
But, seeing what
the man will do
unbribed, there’s
no occasion to.

So all in all, the very institution defendants were apart of – the press – could be the institution inhibiting their ability to receive a fair trial.

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