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Not quite…

By Steven | July 12, 2009

The Herald On Sunday has a story on the Solicitor-General’s investigation of blogs and social networking sites that are commenting on the Clayton Weatherston trial in ways that may prejudice the trial. I’m quoted explaining the reason for the law of contempt, and also as saying it has nothing to do with shutting down freedom of speech. Of course, that’s wrong, and I don’t believe I ever said that. What I remember saying is something like “If you’re worried that this is about shutting down freedom of speech, then bear in mind why we have these rules”.

For the record: to the extent that contempt of court stops us commenting on court cases, it does restrict freedom of speech, and sometimes in ways I think are unjustifiable, though when the laws of contempt are properly and carefully applied, such restrictions are usually justified (in terms of policy and in terms of section 5 of the NZ Bill of Rights Act).

Topics: Contempt of Court, Media ethics | 39 Comments »

39 Responses to “Not quite…”

  1. ross Says:
    July 12th, 2009 at 10:45 am

    Steven,

    Correct me if I’m wrong but aren’t jurors told not to search the internet for info about the trial they are sitting on? And can’t jurors be turfed off by the judge if they breach this rule? And aren’t jurors told to disregard everything else they see or hear about the case?

    Second, in the Weatherston trial, it’s my understanding that both the defence and prosecution agree on the main facts as to what happened. Whilst I haven’t read all blog comments on the matter, I have not seen facts being altered.

    How then is a discussion on the case in the blogosphere going to create a “real risk” that Weatherston will be prejudiced? That will only apply if jurors ignore the judge’s advice, have the inclination and know-how to find the particular blogs in question, and then disregard the evidence they’ve seen and heard in favour of “hang ’em high” comments they’ve read on a blog. I don’t think that seriously constitiutes a real risk of prejudice in this case.

    By the way, I note that another murder case recently concluded where the accused was acquitted of murder but was found guilty of manslaughter. The family of the victim has expressed outrage at the jury’s verdict. Furthermore, it’s prompted the Deputy President of the Law Commission, Warren Young, to say that the law on provocation should be repealed. Young was quoted as saying (to the effect) that a reasonable person doesn’t lose control and kill, so the law was a nonsense. Now that sort of comment runs a real risk of prejuducing the Weatherston trial! Should the Solicitor-General be investigating Young’s comments?

  2. ross Says:
    July 12th, 2009 at 10:58 am

    Dr Young made his comments on the TV1’s 6 o’clock news and they can be found here:

    http://tvnz.co.nz/national-news/provocation-dr-warren-young-talks-tvnz-news-8-4-23-2838421/video

  3. Steven Says:
    July 12th, 2009 at 2:21 pm

    Yes, jurors are told only to focus on the evidence before them, and sometimes they’re specifically told not to go online. It’s becoming increasingly apparent that many of them ignore these directions. How exactly is the court to find out about this?

    I don’t know whether anyone has misstated facts or blogged on suppressed information. I’ve just said that if they have, there’s a greater chance of prejudice to the trial.

    But that doesn’t mean there’s no risk at all to say (pretty forcefully, as some are doing) that the jury should find CW guilty of murder. How would you feel if you were a defendant, and there was a chorus of bloggers calling on the jury to convict? Unconcerned – because they were given a warning not to look at it, or becuase they can be relied on to make up their own minds? I don’t think so. There is some research to suggest that juries want to be seen to be making decisions that are consistent with community attitudes. If there’s a volley of views, strongly biased one way, on well-read websites, that starts to come close to the sort of real risk that the law of contempt is supposed to guard against.

    I don’t want to overstate the risk. There’s also evidence that when jurors do look at the news coverage (against judges’ instructions) they simply laugh about the ignorance of the coverage. And there seems to be a widely held belief that jurors can focus on the matter at hand and reach impartial decisions despite a bit of prejudicial publicity. You’re right that they may well not take much notice of rants on some blogs, even if they read them at all.

    You raise a very interesting question about what I’d call contempt by a sidewind (ie publicity given to apparently unrelated matters that may sway a jury in a particular trial. Another example might be a barrage of extremely emotional and negative publicity given to a child abuse case when a jury was sitting on an entirely different child abuse case). This has been identified in the overseas research on contempt, but I’ve never seen any NZ court address the issue. It’s a bit of a blind spot.

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