Fundamental Rights, Fair Trials and the New Audio‐Visual Sector
| Date | 01 July 1996 |
| Author | Clive Walker |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02096.x |
| Published date | 01 July 1996 |
Fundamental Rights, Fair Trials and the New Audio-
Visual Sector
Clive
Walker”
Introduction
The media reporting of court trials, especially those concerning criminal matters,
has long been recognised in this country as creating potential conflicts of interest
and clashes of rights. On the one hand, there are individual and collective interests
in freedom of expression. That there is a free speech interest especially based on
I
the
argument from democracy as articulated by Meiklejohn, in what happens in
the courts cannot readily be denied since it arises in at least three ways. First,
courts are a fundamental state responsibility as they dispense state laws and
justice. Consequently, no matter who is appearing in them, there is state interest
and therefore a legitimate demand for democratic accountability and discussion.
Next, there may
be
added public interest in discussion where the state is one of
the
litigants, as usually it
is
in regard to criminal prosecutions. Thirdly, even
litigation brought between private litigants may air matters of public concern. On
the other hand to these pressures towards publication and discussion lie the
individual and collective interests
in
upholding the fairness of trials and respect
for the judicial system in general, both of which may
be
damaged by unregulated
speech. Nevertheless, as has been observed by many before today, the clash of
values may
be
more apparent than real. The individual can usually expect to
benefit from the ‘sunshine’*
of
public proceedings and
the
public scrutiny of
legal proceedings in which the state is inevitably a stakeholder
if
not a direct
party. Equally, the public has
a
collective interest in fair trials for suspected
individual citizens
-
as was discovered with cases like the
Birmingham
6,3
miscarriages of justice are ultimately very damaging to the criminal justice
process as
a
collective enterprise,
as
well as representing personal tragedies for
the defendants in~olved.~
For
the greater part of English legal history, these conflicts of interest and
clashes
of
rights
were
debated and resolved by
the
English courts themselves5
*Director and Professor, Criminal Justice Studies, University of Leeds.
This article was presented
in
an earlier draft at the Conference on ‘Fundamental Rights and New
Information Technologies
in
the Audiovisual Sector,’ organised by the European Audiovisual Observatory,
Council of Europe., Strasbourg, November 1995. It
also
builds
on
research in the USA on visits facilitated
by the University of Louisville, Kentucky and George Washington University, Washington DC. My thanks
also
go to Adam Crawford and Yaman Akdeniz for their comments.
I
See Schauer,
Free Speech
(Cambridge: Cambridge
UP,
1982) ch 3.
2 ‘Sunshine
is
said to be the best of disinfectants’ (Brandeis,
Other People’s Money
(New York: FA
Stokes, 1932) p92).
3
R
v
Mcllkenny and Orhers
[
19921
2
All
ER 417. See Walker and Starmer,
Justice in
Error
(London:
Blackstone, 1992) p 9.
4 The legitimation crisis was sufficient to provoke the appointment of the Royal Commission on
Criminal Justice (Cm 2263, 1993). See McConville and Bridges (eds),
Criminal Justice in Crisis
(Aldershot: Edward Elgar, 1994); Greer, ‘Miscarriages of Criminal Justice Reconsidered’ (1994) 57
MLR 538; Nobles and Schiff, ‘Miscarriages of Justice: A Systems Approach’ (1995)
58
MLR 299;
Walker, ‘Review
in
Error’ (1995) 35 Brit
J
Criminology 661.
For recent trends
in
Scotland, see Bonnington, ‘Press and Prejudice’ (1995) 145 NLJ 1623.
5
517
0
The Modern Law Review Limited
1996
(MLR
59:4,
July). Published by Blackwell Publishers,
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and 238 Main Street, Cambridge, MA 02142,
USA.
The Modern Law Review
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Reflecting very much the value of freedom of expression, the judicial principle of
‘open
justice’ was pronounced
in
Scott
v
Scott
as long ago
as
1913.6 More recent
court pronouncements have likewise often emphasised the importance of free
speech.’ At the same time, the courts have regularly been persuaded that free
speech, important though
it
is, must be overridden by concerns for the
administration of justice. Some of the more controversial examples of
this
conclusion include banning orders in relation to the
Sunduy
Times’
discussion of
the Thalidomide victims,* television re-enactments of the
Birmingham
6
appeal,’
and the wish of a public figure to discuss on television the education of her
handicapped daughter.
lo
For
good
or
ill, the English courts
no
longer have the final word
on
this delicate
and controversial balancing act. As first demonstrated
in
the
Sunday
Times
case
itself,” an external umpire, the European Convention
on
Human Rights, can later
be called upon by disgruntled domestic litigants. Furthermore, the same case
illustrates that the Commission and Court may diverge from the domestic courts in
balancing, according to their own lights, free expression under Article
lO(1)
on
the
one hand and,
on
the other hand, respect for the authority of the judiciary (Article
10(2)),
the fairness of trials (as
in
Article
6
of the European Convention),’* and the
interests of privacy under Article8 arising from the encouragement of the
rehabilitation of reformable or reformed offenders.
l3
Since 1978, the European
Court of Human Rights has shown itself to be particularly active in the field of
censorship connected with the legal system, and as shall be described, has adopted
a rather more interventionist stand than in other areas of censorship, such as in
connection with morality and religion.
l4
Yet, just
as
this international instrument of scrutiny is becoming well-established
and active,
so
radical developments in the new audio-visual sector now create the
possibility that this international layer of normative regulation will
in
turn become
inadequate or
at
least marginal. It is
true
that the Convention’s normative standards
have retained vitality and relevance through the increasingly purposive and
programmatic interpretative techniques adopted by the relevant enforcement
bodies. Nevertheless, the actual mechanisms of international governance which it
6
7
8
9
10
11
12
13
14
15
[I9131
AC
417.
See
also
Contempt of Court Act
1981,
s4(1).
See especially
R
v
Dover
JJ,
ex
p
Dover DC
(1991),
The Times,
21
October;
R
v
Beck,
exp
Daily
Telegraph
[
19931
2
All ER
177;
R
v
Clerkenwell Metropolitan Stipendiary Magistrates’ Court,
exp
The Telegraph plc
[
19931
2
WLR
233;
In
re W
[
19921
1
WLR
100,
MGN Pension Trustees
v
Bank
of
America
[1995] 2
All ER
355;
R
v
Westminster
CC,
exp
Castelli and Garcia
(1995).
The Times,
14
August.
AG
v
Times Newspapers Ltd
[
19741
AC
273.
In
re
Channel
4
TV
Co
Ltd
[
19881
CLR
237.
Re
Z
[I9951 4
All ER
961.
See
Evans, Sunday Times and Times Newspapers
v
UK,
App no
6538174,
Ser A,
vol30
(1979-80)
2
EHRR
245,
(1981) 3
EHRR
317,615.
For
a
full exposition of relevant principles, see Ashworth,
The Criminal Process
(Oxford: Clarendon,
1994).
See
Children and Young Persons Act
1933,
ss
39,47;
Rehabilitation of Offenders Act
1974.
Privacy
has been rejected
as
a
legitimate ground for restriction under the Contempt of Court Act
1981,
s
11:
R
v
Felixstowe
JJ,
exp Leigh
[
19871 2
WLR
380;
R
v
Dover
JJ,
exp
Dover DC
(1991),
The Times,
21
October;
R
v
Westminster
CC,
exp Castelli
and
Garcia
(1995),
The Times,
14
August.
It
is
also
not the rationale behind the Sexual Offences (Amendment) Act
1976, s4
(as
amended); see Brogarth
and Walker, ‘Court Reporting and Open Justice’
(1988) 138
NLJ
909.
Handyside
v
UK,
App no
5493172,
Ser A, no
24 (1979-80)
1
EHRR
737;
Gay News
&
Lemon
v
UK,
App no
8710179,
DR
28,
p77 (1983)
5
EHRR
123.
But see
also
Wingrove
v
UK,
App no
17419190.
See Harris, O’Boyle and Warbrick,
Law
of
the European Convention
on
Human
Rights
(London:
Butterworths,
1995)
pp
6, 7.
518
0
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