Open Justice or Open Season?: Should the Media Report the Names of Suspects and Defendants?
| Author | Michael Bohlander |
| Published date | 01 August 2010 |
| Date | 01 August 2010 |
| DOI | http://doi.org/10.1350/jcla.2010.74.4.646 |
| Subject Matter | Article |
Open Justice or Open Season?:
Should the Media Report the
Names of Suspects and
Defendants?
Michael Bohlander*
Abstract The daily news in England and Wales is full of reports about
people who have been arrested, arraigned before a court, convicted and
sometimes also acquitted, of some heinous crime or other. Most disturb-
ingly, the suspects are named in full with their address and more often
than not their photo will also be printed or broadcast. Their private lives
and professional reputation are highly likely to be seriously affected the
minute the news is made public, regardless of a later acquittal, which may
not come until the Supreme Court decides years after the event. This
article queries what open justice can be taken to mean in today’s media
society, whether the media are in it for the sake of enhancing justice or the
sake of enhancing sales. The situation in the UK will be set out using the
example of the decision of the UK Supreme Court in the Guardian News
case and compared with the German press code of conduct.
Keywords Open justice; Media; Privacy; Freedom of speech;
German press code of conduct
The public have an insatiable curiosity to know everything. Except
what is worth knowing. Journalism, conscious of this, and having
tradesman-like habits, supplies their demands.
Oscar Wilde, The Soul of Man under Socialism (1891)
Newspapers are unable to discriminate . . . between a bicycle accident
and the collapse of civilization.
George Bernard Shaw, Too True to be Good (1931)
A requirement to report it in some austere, abstract form, devoid of
much of its human interest, could well mean that the report would
not be read and the information would not be passed on. Ultimately,
such an approach could threaten the viability of newspapers and
magazines, which can only inform the public if they attract enough
readers and make enough money to survive.
Guardian News and Media Ltd vMohammed Jabar Ahmed [2010] UKSC 1
at [63]
The daily news in England and Wales is full of reports about people who
have been arrested, arraigned before a court, convicted and sometimes
also acquitted, of some heinous crime or other. From breakfast to
bedtime, there is an unrelenting barrage of institutionalised public
gossip on the radio, TV, in tabloids, etc. about the evil deeds and
character of fellow citizens, with national radio and TV reporting almost
* Professor of Law, Durham Law School; e-mail: michael.bohlander@durham.ac.uk.
321The Journal of Criminal Law (2010) 74 JCL 321–338
doi:10.1350/jcla.2010.74.4.646
instantaneously about incidents as far apart as John O’Groats and Lands
End. Particular attention is paid to homicide and sexual offences, true to
the journalistic adage: ‘if it bleeds it leads’. Most disturbingly, the people
suspected of such evil deeds are named in full with their address the day
or even hours after the arrest. More often than not, their photo will also
be printed or broadcast, even though there may be a perfectly good
chance of their being entirely innocent. Their private lives and pro-
fessional reputation are highly likely to be seriously affected or even
ruined the minute the news is made public, regardless of a later acquit-
tal, which may not come until the final appellate stage in the Supreme
Court years after the event—semper aliquid haeret. Contrast this with the
other side of the fence: the names of victims in sexual offence and
children cases are regularly not reported. They are said to be in need of
lifelong anonymity under the Sexual Offences Act 1992, which may be
lifted if it turns out that they had intentionally wrongly accused the
defendant and they are prosecuted for perjury etc. This article is not
intending to argue that they should also be put on display publicly in
order to achieve equal treatment. They should not. Yet it is open to
question whether the fact that one is a victim of such an offence has more
of a potential for causing lifelong damage to one’s reputation and right to
privacy than the fact of being unjustly accused of perpetrating it. All of
this is done in the name of the hallowed and time-honoured principle
of open justice. The principle of open justice and its justification have
recently been succinctly summarised by the Judicial Studies Board in its
2009 booklet Reporting Restrictions in the Criminal Courts:1
The general rule is that the administration of justice must be done in public,
the public and the media have a right to attend all court hearings and the
media are able to report those proceedings fully and contemporaneously.
The public has the right to know what takes place in the criminal courts
and the media in court act as the eyes and ears of the public enabling it to
follow court proceedings and to be better informed about criminal justice
issues.
The open justice principle is central to the rule of law. Open justice helps
to ensure that trials are properly conducted. It puts pressure on witnesses to
tell the truth. It can result in new witnesses coming forward. It provides
public scrutiny of the trial process, maintains the public’s confidence in the
administration of justice and makes inaccurate and uninformed comment
about proceedings less likely. Open court proceedings and the publicity
given to criminal trials are vital to the deterrent purpose behind criminal
justice. Any departure from the open justice principle must be necessary in
order to be justified.
Parliament has recognised the importance of contemporaneous media
reports of legal proceedings by giving protection from liability for contempt
of court and defamation to fair, accurate and contemporaneous reports of
court proceedings. The important role of the media as a public watchdog is
also recognised under the right to freedom of expression guaranteed by
Article 10 of the European Convention on Human Rights (ECHR).
1 Available at http://www.jsboard.co.uk/downloads/crown_court_reporting_restrictions_
021009.pdf at 6, accessed 4 June 2010.
The Journal of Criminal Law
322
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