The media’s influence on justice

An imperfect thing: the media’s influence on justice

by Jackson Wood

We hear the term ‘trial by media’ thrown around. But just how robust is the interplay between New Zealand’s justice system and the media? Editor Jackson James Wood investigates.

It’s 4:45pm on 5 June this year and I am watching Wendy Petrie’s live cross from outside the Christchurch High Court. This was the most intensely reported-on trial New Zealand has witnessed—live streaming video, reporters camped outside the court for the whole month, daily updates in all major dailies, inches upon inches of editorial columns and megabytes of blog-space have been written about this case.

New Zealand Press Association news editor Kevin Norquay said, “everyone knew he had been tried once before and found guilty. There was no prospect of being able to report that trial without indicating what had happened. It was an unusual situation.”

Coming off the back of a year of media-intensive trials—from Tony Veitch to Clayton Weatherston, Bain to Taito Philip Field—discussion here and abroad has been drawn to how the media addresses high-profile court cases.

Oft we hear the term ‘trial by media’ thrown around. But just how robust is the interplay between New Zealand’s justice system and the media? Has the concept of innocent till proven guilty been eroded by media inference? Does public interest trump privacy?

Public interest

Senior lecturer in Media Studies Dr Douglas Van Belle sees public interest as a way of keeping the judicial system transparent and honest.

“Public interest focuses primarily on making the substance of the case—not necessarily the identity players—the evidence and logic and so forth, publicly available for public scrutiny.

“You can have a fair system, it doesn’t always go fairly for the individuals caught up in it,” he said.

Norquay said for justice to be seen to be done, “somebody who is deemed to have done something against the rules and regulations that society has imposed needs to be tried in public.” This will allow the public to be aware of the ins and outs of the case against them and therefore be better informed.

The Gatekeeper

There are certain rules about what the media can report during a trial, and unless you’re sitting there it is unlikely you’ll ever know. Norquay describes the public’s view of most cases as just the tip of the iceberg. “What the reporter and the newspaper know is the part under the water.”

One of the things you’re asking the news media to do—as a consumer of news—is to sort through a mass of information and give you the details you need to know.

Occasionally media outlets will take a chance when there is suppressed information they believe to be of public interest. The Dominion Post in particular has taken chances on things they believe are in the public interest. This was shown with the publication of police documents about the 2007 Urewara arrests.

In this case The Dominion Post intercepted and then published parts of a 156-page affidavit used to gain warrants for the arrests. The Solicitor-General, Dr David Collins QC, threw down a hefty indictment, saying “the articles were the most serious and inexcusable breaches of an accused’s fair trial rights that this country has ever seen.”

Fairfax, The Dominion Post and then-editor Tim Pankhurst were cleared of the contempt charges on the basis it would be unlikely for jurors to remember details of the stories when in all likelihood their trials wouldn’t take place for two years.

Norquay said, “it was quite a brave and responsible stance for a media organisation to take.”

Crusading journalistic ethos aside there is a plus side to having many different media outlets decide what you should know.

Van Belle said “assuming you have a variety of news media and a variety of perspectives you’re going to get a variety of information from different perspectives. You, as an intelligent consumer, can develop an opinion as a whole.”

As long as they’re operating within the rules, allowing a variety of different reporting styles, angles and edges, it’s actually to the benefit of us, the consumers of news, and to the discourse around any given trial.

Suppressed

Van Belle said, “the one thing you absolutely want to preserve is the process of name suppression. The specific theme of the person involved—unless it is a public official—until the trial system has run its course, and you have a verdict, by suppressing the name you get a chance that, if acquitted, the person can return to at least a reasonably normal life.”
Norquay disagrees, saying “If you have a whole series of court cases where you report a guy from somewhere is alleged to have done something to someone who we can’t tell you who they are. What is the point? There is no deterrent value to anybody not to commit crimes if they know they’re going to get instant name suppression a lottery-type chance of getting off.”

However, there is also a dark side to suppression, as Norquay points out in the Louise Nicholas case. “There wouldn’t have been a journalist in the country that didn’t know that those two guys were in jail and that they had previous convictions for the same thing.”

Because of the rules, not only could the media not report that arguably important fact, but the jury were not allowed to know let alone take it into consideration.

The Law Commission’s issue paper Suppressing Names and Evidence released late last year concludes in the favour of open justice, but provides many discussion points around why suppression should be granted. It also brought into question the cost of penalties for breaking suppression, which are quite low ($500–$1000 fine or three months in prison).

Norquay said many of the breached suppression orders are mistakes, and occasionally a person’s name has already been made public before they’re formally charged and given name suppression. “It is almost impossible to put that particular genie back in the bottle,” he said.

This difficulty is acknowledged by the Law commission: “we heard of cases in which journalists had great difficulty in ascertaining whether there was an order in place in a particular case, and what its terms and duration were.” They go on to suggest a national register of suppression orders or a Courts Information Officer.

TEH INTERET

When asked by Salient, Justice Minister Simon Power said, “the internet has substantially altered the way we communicate as a society. It’s important for the media to report criminal trials responsibly, in a factually accurate manner, and preferably without recourse to what might be considered gossip or unreliable opinion.”

Victoria University of Wellington media law lecturer Steven Price has posted a blog in which he outlines his thoughts on the way to deal with the internet, blogs and social networking sites. He points out most of the risk of prejudicing a trial comes from top Google hits and widely used social networking sites.

He said, “it is now unrealistic to expect jurors not to Google. The debate among judges tends to be: ‘do we warn them not to look at information outside the court, or do we explicitly warn them not to Google?’”

The conclusion Price reaches is that Googling is almost instinctive and it would be counterproductive to make it a criminal offence or sequester the juries so they don’t have internet access.

Price’s solution: “An official should be tasked with sitting down before each trial (and periodically during it) and Googling the defendant’s name. If there’s prejudicial material out there, steps should be quickly taken to have it temporarily taken down.”

Van Belle doesn’t see online news or blogs as a big problem for the judicial system.

“People who go online for information go to trusted sources. Until a blogger establishes a reputation as a trusted source, they’re not going to have an impact in any mainstream kind of way.

“If you’ve got some off-the-wall kind of blogger, only off-the-wall people are going to be reading it anyway.”

On the topic of David Farrar’s Kiwiblog, Van Belle said: “it probably pales in comparison to stuff.co.nz.”

Price reminds us that with free speech comes limits and responsibilities: “If it can be shown that they have published some inaccurate, or suppressed, or prejudicial material, and it has improperly influenced a jury, this may give defence lawyers grounds to argue on appeal for a conviction to be overturned.

“Imagine if Weatherston’s lawyers got his conviction overturned because of prejudicial publicity. It’s that prospect that should make bloggers save their comments until after the trial, as much as any fear of a contempt action against them.”

Norquay points out that how closely a journalist walks the line “depends who is drawing the line. Depends on the journalist. Depends on the organisation. You should be cautious and aware when reporting court cases to not interfere in the process.”

An imperfect thing

Of course the process is the most important issue. Within the framework of a democracy we can’t and should not stop people from having opinions and voicing them. What we should be doing is encouraging opinions based on fact. The easiest way to do that?

Power said it is to provide “factually accurate, neutral and balanced” reporting.

Norquay posits that the Weatherston case served the people of New Zealand well:

“Let him say what he likes and let the public make up their own minds. It is when you put it in an editorial line and say ‘this is what he did, this is what you should think’—that is bad.”

As the justice system shows us every day, humans are flawed. Because of this, media and democratic government are flawed too. “You’re asking it to do too many things at once.” Says Van Belle. “It is never going work precisely right. That same editorialising that you don’t like with a court case is absolutely critical when you’re talking about policymaking in government.”

Power’s promise to remove the partial defence of provocation is one example of how the vital the interplay between the justice system and the media is. Without the focus on Weatherston’s use of the defence it is unlikely enough traction would have been gained to get the law changed in the same timeframe. A big fist pump to the media for this.

So goes the onward crawl of the judicial system of New Zealand.

Van Belle sums up the situation well: “You just gotta live with it—it’s a broken car, but it’ll get you there. You have to accept it is an imperfect thing, but it is the least imperfect thing we’ve got going.”

http://www.salient.org.nz/features/an-imperfect-thing-the-medias-influence-on-justice

This story was syndicated by the Aotearoa Student Press Association via Salient www.salient.org.nz

ENDS

© Scoop Media