As every journalist knows, publication of prejudicial material while
criminal proceedings are active can constitute a contempt of court –and
nothing is much more obviously prejudicial than disclosure of a
defendant’s previous convictions .
But the law on this point is now becoming somewhat confusing.
On
the one hand, new rules give judges discretion to admit evidence of
previous convictions where a defendant has been convicted of the same
offence before or, where he is charged with a theft or child sex
offence, a conviction in the same category (Criminal Justice Act 2003,
in force December 2004).
These changes seem to indicate a greater
willingness to accept that juries can be relied upon to judge cases on
the facts and not be unduly influenced by knowledge of the accused’s
“form”.
Related
Online newspaper archives , which may contain news
reports of old trials and previous convictions, are still a danger area
in terms of possible contempt.
In December 2002 the Law
Commission said that, while they accepted that it was not practically
possible to monitor all criminal trials in the country and subsequently
remove from internet archives any potentially prejudicial material,
there were sufficient safeguards in the existing law. So, the judge
could warn the jury not to speculate about why no evidence of the
defendant’s character had been given and, if necessary, direct jurors
not to carry out their own internet research.
“Jurors cannot be
prevented from using the internet to search for detrimental material on
criminal defendants if they are determined to do so. However, the
criminal justice system places trust in the good sense of jurors to
decide cases on the evidence before them…”
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By contrast, this is
what Lord Goldsmith QC said at a seminar in November last year: “Of
course, the judge can give direction to the jury not to surf the web
but… that is not a very easy direction to give. The media therefore
has to be aware of this risk and be prepared, where there is a
substantial risk of serious prejudice, to remove reports from web
sites, even when the report, when it first appeared, did not give rise
to a substantial risk.”
When dealing with issues of contempt, judges must speculate about the likely impact on a juror of press material.
In
a 2001 Daily Mirror case, the judge was strongly critical of an article
published during the trial which quoted opinions by a relative of one
of the victims, essentially because the opinions contradicted guidance
he had given to the jury and also touched on an issue which “may be
close to the centre of their deliberations”.
Even making
allowance for the fact that the judge was in a far better position to
judge mood and impact at the time than any bystander, this seemed a
rather pessimistic view of a jury’s ability to judge a case on its
facts.
Judging what the impact looks like from the other side of
court is hard, since jury research is not allowed, but columnist Simon
Jenkins recently suggested that juries be scrapped in criminal cases.
He argued that judges were paid to decide questions of guilt and
innocence and should get on with the job ( The Times , 27 January).
He
suggested that on the one hand jurors are considered to have more
common sense than a judge, while on the other hand “the laundering at
trials of details of motive, character, background and past record
assumes that jurors are not commonsensical at all, but stupid”.
It is just about possible to reconcile Jenkins’s dichotomy if for “stupid”
one
substitutes “unsophisticated” and takes into account that an average
jury will consist of a range of people, by education and ability, so
that inevitably a lower common denominator must be kept in mind.
For
example, it is strongly arguable that an average jury (and possibly a
judge too) would have been influenced if told that Ian Huntley had
previously been questioned by the police following allegations of
assault on women. Disclosure of such information during trial would
also raise further questions, such as – what if the women had been
fantasists who unfairly accused him?
If a judge became aware of
such evidence he would presumably decide to put it out of his mind. No
such allowance would be made for a jury.
We seem to be undecided whether we can we trust juries.
Meanwhile,
in the media field, they continue to have a central role in libel cases
– and how many journalists faced with prosecution under the Official
Secrets Act 1989, would say they did not want a jury to hear their case?
Richard Shillito is partner in the media team at Farrer & Co Additional research by Kitty Arbuthnot, trainee
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