Get rid of these paternalistic laws
The Independent, 3 August 2005
By Heather Brooke
Now that the suspected terrorists have been captured, the media moves into murky territory about what it can tell the public. The police are in a difficult position. They know the public wants information but, as an officer involved in the investigation said, “We are having to be particularly careful about what we say because they [the suspects] have now been arrested. We are worried about the contempt laws.”
Trials of terrorism charges almost always start with complaints that pre-trial media coverage will inherently prevent a fair trial. Inevitably, some judges have expressed disapproval of the press and the Metropolitan Police Authority asked Sir Ian Blair last week if he would condemn the media coverage. The head of civil rights group Liberty has demanded that the Attorney General clamp down on the media to prevent future contempt of court.
Lost in all this criticism of the media is the right of the public to be kept informed. Like most Londoners, I have listened to weeks of sirens screaming by my flat. Last Thursday, I found myself confronted by 20 police officers as I entered Tottenham Court Road tube station. I’ve seen armed police in London and wonder about the details of their new ‘shoot-to-kill policy’. The police are certainly not telling me what’s happening, so I, like every other citizen in this pseudo-democracy, get my information from the media. The media in turn get it from us, as the police aren’t telling them much either.
That the police and judges want to stifle this one lifeline to information, shows the extent to which the UK’s paternalistic Contempt of Court law is out of step with democratic times. It is only through Sky News and the BBC that I have been able to make some sense of the frightening chaos.
It is all very well saying the police need some room to manoeuvre, but the information lockdown operating at all times, not just during the present crisis, among the police and judiciary, makes a mockery of open justice. It is no surprise that we know more about the Italian bombing suspect than any other part of the terrorist investigation. Or that the American public was the first to see photographs of the bombed tube carriages. These countries are free from such stifling Contempt of Court laws.
The problem here lies in our judicial system’s unrealistic expectations. Many judges seem to inhabit a fantasyland where they believe everyone who comes to trial does so without a reputation and jurors’ minds must be an absolute blank. This is justice by myth and the danger of being so out of step with society is that collective justice will cease to satisfy individual desire for retribution. A more pragmatic approach is needed that understands and respects the public’s interest in seeing justice done.
The contempt of court laws prohibit the publication of any information that could be judged to seriously impede or prejudice judicial proceedings while those proceedings are active. They also prevent publication of a suspect’s background or previous convictions. This gag on freedom of expression is bad for many reasons. It assumes that juries (and by default the public) are incapable of rational thought once exposed to the media. Such a patronizing elitist attitude is clear when you consider that this type of contempt only refers to trial by jury: a judge is deemed sufficiently intelligent to discount media coverage.
We’ve been here before. After Ian Huntley was arrested for the Soham murders, judges pressed the Attorney General to slap contempt of court orders on the press. The law is so far-reaching, the Solicitor-General, Harriet Harman, found herself in trouble for contempt when she tried to have a case reviewed in which a child was taken away from her mother based on testimony that the parent suffered from ‘Munchausen by proxy’ syndrome. Even David Blunkett has been caught out when he made remarks following the arrest of an alleged al Qaida terrorist in Gloucester.
No one doubts the right of a defendant to have a fair trial but it must be balanced against the law-abiding public’s right to be kept informed and the victim’s right to justice. The UK judicial system has swung too far in protecting the rights of the accused at the expense of everyone else and this imbalance has led to increasingly reactionary laws coming through Parliament that strip everyone of their civil liberties.
There are a lot more threats to civil liberties in this country than excess information, so it baffles me why Liberty is willing to trample all over freedom of speech, freedom of the press and the public’s right to know.
The director of Liberty, Shami Chakrabarti, has written to the attorney general asking him to issue an informal warning to the media to prevent future contempt stating there is ‘a real danger that the constant association of these faces with commentary relating to criminal charges…would help foster an assumption of guilt in the fairest of juror’.
On what facts does Chakrabarti base this assumption? The answer is simple – none. Almost no research has been done in the UK on juries, how they reach their decisions and their courtroom experiences. Where empirical studies have been done – in the US and New Zealand for instance, where there are no such contempt of court laws – the evidence is overwhelming and all points in one direction: media exposure has no effect on a juror’s decision and in fact jurors are remarkably able to put aside what they have seen or heard about a case and judge it based on the evidence presented in court. Even the most publicized cases in the US have more often led to acquittals than convictions. Those are facts. What Liberty and other human rights lawyers are peddling is pure fantasy.
It is time to acknowledge that the contempt of court laws in this country produce far more harm than good. They are based on inherently paternalistic and unproven perceptions that show a remarkable lack of respect for the public.
An edited verison of this article appeared in yesterday’s Indpendent.