Justice imperilled

Christian Rowlands is undergraduate joint winner of the John Howard Essay Prize 2013. The question was: Trial by tabloids: Do the media facilitate or threaten the administration of justice in England and Wales? The other winners are Katie Sambrooks and Rose Harvey.

The media has always been concerned with the topics which most affect our daily lives, and nothing affects them more than that which sets their limits: the law. Whether in relation to their conduct (the Leveson inquiry) or what are regarded as miscarriages of justice (campaigns relating to the Hillsborough disaster), actions by the media can threaten the administration of impartial and fair justice in England and Wales, and impede the legal system. The increasing ability at the fingertips of every journalist, politician and member of the public to instantly distribute high volumes of information via social media and the internet has only amplified this threat.

This essay will argue that the current state of the media’s involvement in relation to legal issues is too great, damaging the actual performance and public perception of our legal system. It will further argue that an appropriate relationship between the media and the courts is entirely feasible, as the need to administer justice and the need to inform the public of significant issues are both one and the same thing. The former cannot be met without the latter, but an appropriate balance must be struck.

The media vs. the law: what do they want?

The rule of law is the fundamental principle here, as defined by Lord Bingham in his seminal work, ‘Rule of Law’:

“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”

On this conception, the idea of a conflict between the media and the just administration of law in England and Wales superficially seems to be flawed: their purposes seem identical. Both the media and our legal institutions aim, among other things, to ensure that the ideal set out by Bingham is achieved. One element of that ideal is the ability of private individuals to benefit from the law, in the sense that they can achieve just outcomes: this is what the rule of law offers to the families of Hillsborough disaster victims; another is public officials being subject to the law, in that they are unable to avoid justice: this is what the rule of law entails for expenses-abusing politicians.

Media involvement with legal issues generally pursues ‘publicly administered’ justice, and accountability where things go wrong. The media, rightly, seek to share information with the wider public so that justice can be seen to be done. The publication of MPs expenses from May 2009 in the Daily Telegraph illustrated this, by feeding information to the public which would otherwise be unknown, forcing greater transparency, in turn making it harder for MPs to abuse the system. Justice was served.

Compare this with the law’s objectives: it, too, wishes to ensure public administration of justice, accountable by means of judicial review and rights of appeal. In the case of R v Bentley, decd. (2001), right to a fair criminal trial was referred to as ‘the birthright of every British citizen.’

The media vs. the law: the conflict?

So it seems the media and the law want the same thing: maintenance of the rule of law, through public administration of justice and accountability. From this, it must then be asked, where does the conflict lie? In their motivations.

Law and the media should have a symbiotic relationship. Far too often, the media instead actively impedes the pursuit of justice: most obviously where it threatens to prevent access to a fair trial, but also when its members are too close to those in power. The Leveson inquiry revealed the surprising closeness of Rupert Murdoch and senior politicians, indicative of a worrying trend towards media intervention and obstructionism.

The issue of obstruction of a fair trial arose with greatest clarity in the cases relating to child murderer Jon Venables. In a case brought in 1998, the House of Lords held that the Home Secretary, then still in possession of his tariff-fixing power in relation to prisoners, had acted unlawfully in taking into account a public opinion poll conducted by a national newspaper. The case makes clear the harm the media can do to the fair administration of justice.

Arguably, the law is motivated by a desire to reach justice in a fair and accountable way, as an end in itself; the media, conversely, sees justice and accountability as a means to an end, to feed the people who drive its growth, sales and prominence. That’s dangerous.

First, the Sun’s sensationalised reporting of the Hillsborough disaster caused great pain to survivors and to friends and family of the dead. The reports were largely fabricated, as admitted in an apology from editor Dominic Mohan after the report from the Hillsborough Independent Panel, and, fuelled by police disinformation, obstructed the inquiries held after the event. The reports confused public opinion and provided room for the authorities to continue to veil the truth.

Then there’s the ongoing trial of Oscar Pistorious, Paralympic and Olympic athlete, whose girlfriend was found shot dead in his South African home. The trial is taking place in South African courts, where reporters are permitted to photograph and ‘tweet’ from within the courtroom. Though courts in England and Wales restrict such activities, the case illustrates perfectly the dangers of excessive media intervention: twitter updates by reporters live from the courtroom have resulted in headlines reporting the prosecution and defence claims, which cannot be confirmed until justice is done and the court has made its decision.

False reports, publicly denied by South African police, of Pistorius’s murderous intent or his belief that his girlfriend was a burglar, rapidly surfaced prior to his even being formally charged. In the midst of such reporting, based on little fact and even less legal certainty, the question is whether there will be anyone left in South Africa who hasn’t already made up their mind about Pistorius’s guilt by the time of his trial. Will anyone be sufficiently impartial to form a jury? How can a fair trial, one based on the evidence presented to the courtroom alone, come of circumstances in which every piece of unsubstantiated evidence is published in the media for the world to see?

The strength of checks and balances in place in England and Wales ensure that obstruction of justice is generally limited to that of time and money: injustices can be corrected by the process of judicial review, or by appeal of a court’s decision. However, this is only possible if miscarriages of justice are challenged and brought before a court. Ironically, it is the media which is best placed to do this.

Reconciliation: a balance?

The media has the power either to bolster the rule of law and the administration of justice, or to impede the doing of justice in individual cases. The breaking of the MPs' expenses scandal, and the subsequent public backlash, acutely illustrated the power of both print and digital media to successfully pursue fair and impartial application of justice. Not by reporting sensationalised stories to satisfy the transient desire of the public for subjective justice, but by publishing, objectively, the facts and outcomes of cases, and providing context and comment on the administration of justice, based in fact, the media can contribute to the achievement of Bingham’s conception of the rule of law.

The legal system in England and Wales is intended to operate fairly and impartially, observing established moral principles of law and fundamental rights; it is not to bow to the winds of sudden change, but to observe due process. This facilitates the application of the justice desired by the public and the media: the legal system may be seen as the appropriate means of effecting calls for justice so long as it is respected; the reason for this respect is the ongoing and concrete impartiality and accountability it offers.

The media can, should, and, occasionally, does work with the law to uphold principles of fairness. It should not obstruct this pursuit on the tides of public opinion. The legal system must be seen to reflect public attitudes, to ensure continued respect for the law; but it must also follow established procedures, uninfluenced by temporary public moods. Rather than diverting access to a fair trial and crossing boundaries of political relationships, the media should recognise this aim and operate at an appropriate distance.

Author note: My gratitude and appreciation go to Dr James Edwards, Christ’s College, Cambridge, for his extremely useful comments on this essay. His feedback was invaluable.

OurKingdom publishes the winners of the John Howard Essay Prize 2013 in association with the Howard League for Penal Reform and Hacked Off.