YESTERDAY, on the second day of a murder trial in the Central Criminal Court,
Judge Catherine McGuinness granted an application to discharge the jury and put back to a later date, before a new jury, the trial of two men on murder charges.
She did so because of photographs published in national newspapers.
The photographs were of an attempt outside the court by an unidentified man to, prevent a photographer taking photographs of bone of the accused in the murder trial as he left the court.
The event was a news story in its own right, presented as such and published independently of the report of the court case. Yet the concern of the defence counsel who made the application to have the jury discharged was that the photo "graphs could have a prejudicial effect on the minds of the jury.
Are the courts over-protective of themselves and of jurors in this regard? Do they really need to be so sensitive to media reporting of cases? Do juries need to be cocooned to such an extent?
There can be no doubt that trial judges bear a heavy responsibility in ensuring the accused in a criminal case gets a fair trial. That is particularly so in the case of a murder trial, where a guilty verdict has such serious consequences for the accuse possible life imprisonment and the deprivation of liberty that that entails.
However, guilt must be proven beyond all reasonable doubt A unanimous jury verdict or majority of 11 to 1 or 10 to 2 is required. The rules of evidence are strict. As the Supreme Court pointed out in D v DPP in 1994, jury members are made very aware of the heavy responsibility they have as the judges of the guilt or innocence of the accused. They individually take an oath, they are reminded that they must decide the case only on the evidence before them, and besides, the impact on jury members of actually hearing the witnesses and having the evidence presented to them must be borne in mind. Can it not be argued, therefore, that the system has in-built safeguards that media reporting would be unlikely to dislodge?
Equally, what does yesterday's event tell us about the way we view the jury? On the one hand, we trust them alone (the right to a trial by jury is a constitutional right), to decide the facts and; the most important question of all: guilty or not guilty. We trust them to do so on the basis of evidence that is often very long, tedious and complex, and yet we don't seem to trust them to be able to disregard what they read or see in the media.
More and more trial judges seem to be acceding to requests from defence counsel to stop trials on the basis of media coverage of them.
The key question for the judge, is whether the media coverage carries with it a real risk of prejudicing the trial. If as in yesterday's case, an application to discharge the jury is made on that basis by counsel for one of the accused, supported by counsel for the other, and not opposed by the prosecution, then the judge may feel that (s)he has little choice but to grant the application That is because if(s)he refuses to do so the likelihood of an appeal if a guilty verdict is brought in is very high, the grounds being that, because of the media coverage the trial was unfair and the trial judge did not take remedial measures to ensure that it would be fair.
One such remedial measure is of - course to discharge the jury and opt for a new trial with a new jury. However, that is not the only possible remedy and one wonders whether a less distressing remedy would be, adequate to safeguard the rights of the accused and have the advantage of minimising the upset for the family of the victim and witnesses called to give evidence. Could the jury simply have been warned by the judge, not to allow the photographs in the papers to colour their view of the accused and to base their decision in the case on the evidence presented to them in court alone?
Could counsel not have opted for a more muted response by informing the jury that the accused wished to dissociate themselves from the incident shown in the photographs or by simply explaining to the jury how the incident had happened, that it was incidental to the case and should not be taken to reflect on the accused? In some cases, it might even be argued that the best policy is, simply to ignore what has been published.
There may well have been good reasons in this particular case why such measures were considered inappropriate. Nonetheless, the whole question of proportionality is important in determining such issues and, doubtless was taken into consideration by the court.
A very clear example of the application of the principle was the case of Re Central Television in 1991 in Britain, when, on appeal, the decision of a trial judge in a fraud trial to ban media reporting of the trial case the jury members, who were to spend the night in a hotel, would be prejudiced by it, was held to be disproportionate; the least disruptive solution was obviously to remove radio and television sets from the hotel rooms in which they were staying!
A second aspect of yesterday's case was the fact that the problem stemmed from photographs. There is no doubt that the publication of photographs, video or film images, can be damaging in certain circumstances. It is well documented that the publication of photographs of an accused when eyewitness identification is in issue can be prejudicial and amount to contempt of court.
The question arose, for example, in relation to the MacArthur murder case in 1983. Likewise, photographs may not be published where proceedings, such as family cases, are held in private, specifically to protect the privacy of the parties often children. The same is true in rape and sexual abuse cases where the identity of the victim is protected.
It would probably also be at least a technical breach of section 17 of the Criminal Procedure Act 1967 to publish photographs - even of scuffles or protests outside the court relating to a preliminary examination of the evidence against an accused. The statute is particularly strict in what can and cannot be reported in relation to a preliminary examination because such an examination concerns only the evidence against the accused and is therefore, of its, very nature, one-sided.
It is true also that the media have encountered problems where they published photographs of the wrong person or positioned photographs of unconnected persons beside a report on crime or used footage of a person taken in a public place to introduce a report on drunk-driving, for example. ,
THERE have been numerous incidents where the media have had to answer for contempt in relation to reporting of court cases, but there do not appear to have been problems with photographs except in the kind of situations outlined above. While photographs may not be taken in court or in the precincts of the court, there is no law against taking photographs for publication in a public area outside the court. Judge McGuinness spoke of the "undesirable" practice of publishing photographs of accused persons. Some people view such photographs as a form of added punishment and stress the fact that accused persons, are presumed innocent until proven guilty. In response, it may be argued that the public is educated to that principle of our justice system.
It is worth remembering in this discussion that the Supreme Court in Z v DPP in 1994 which related to the trial of the man at the centre of the X case, which had received saturation coverage - expressed its confidence in juries to act responsibly and in accordance with their oath, to be particularly scrupulous in preventing themselves and each other from deciding the case based on any view arising from media coverage.
While conscious of the dilemma a trial judge sometimes faces in ensuring a fair trial in the face of media coverage, the court stressed the role of the judge in directing the jury. In the words of Hamilton, P in the High Court in the same case, the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues save where there is a real risk of the likelihood of an unfair trial.
