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Clayton’s defence

By Steven | July 31, 2009

Provocation. The defence you use when you’re not really putting on a defence.

The end of the Weatherston trial is a relief to Sophie Elliott’s family, the nation… and (for much less serious reasons) to me personally. Over the past few weeks I’ve received a string of calls from reporters wanting me to comment on the possibility that bloggers and facebook sites might be held in contempt of court for calling Clayton Weatherston a murderer (and worse) while the trial was going on.

Many of them were pursuing the angle that journalists always pursue in stories like these: has technology galloped past the law?

Here’s a summary of what I must have told reporters twenty times. I would have blogged it earlier, but I was afraid of getting more calls:

1. Contempt of court requires proof of a real risk of prejudice to a fair trial.

2. What’s a real risk? That depends on lots of things. But the possibility of prejudice to trial is particularly high during a criminal jury trial, when jurors are warned to focus only on the evidence provided in court and there is a danger that they will be influenced by outside material.  It will be a serious contempt, for example, for a nationwide TV station to broadcast information about a defendant’s previous similar convictions that have been kept back from the jury.

3. It’s possible that expressing the opinion that someone’s guilty will also be a contempt, particularly if jurors are called upon to bring in such a verdict, and more particularly if it’s suggested that this is what the public wants. There is evidence that jurors want their decisions to be consistent with what they perceive are community expectations.

4. What if it’s just put out there on a blog or social networking site? Will this create a real risk of prejudice? That might depend on how popular the site is. If it’s read by few people, it may be very unlikely to be seen by jurors, and therefore not likely to create a real risk of prejudice. The chances of a real risk rise, though, for sites that are widely read or come up in the first couple of pages of a Google search of the defendant’s name.

5. This is because it is now unrealistic to expect jurors not to Google. The debate among judges tends to be: “do we warn them not to look at information outside the court, or do we explicitly warn them not to Google?” The worry is that telling them not to Google might put it into their heads to do just that. What’s out there that we’re not being told, they might wonder. I think the ship has sailed on that debate. We must start to assume that at least one of those jurors is going to Google, because it’s becoming so instinctive.

6. Should we make it a criminal offence for jurors to conduct an internet search. That’s what they do in Australia. This might protect defendants from jurors who might be exposed to prejudicial material online. But I’m inclined to think it will be counter-productive. Jurors will still peek; they just won’t admit it.

7. What else can we do? Sequester juries? I don’t think so. It’s expensive and very restrictive. It’s rarely done here.

8. I think some official should be tasked with sitting down before each trial (and periodically during it) and Googling the defendant’s name. If there’s prejudicial material out there, steps  should be quickly taken to have it temporarily taken down. That may involve developing protocols with the media to ensure that any prejudicial information in their archives aren’t accessible. It may also involve providing greater powers to the Solicitor-General to direct the removal of prejudicial material.

9. What if it’s up on an overseas site, beyond our power to control? I suspect this won’t happen very often. There aren’t very many people overseas who take much of an interest in NZ cases. Those who do might be persuaded by a request to remove material that might otherwise lead to a mistrial. If they can’t be persuaded, I’m inclined to think that judges ought to talk to juries about it, instead of simply hoping they won’t see it. Talk to them about what they’re going to see if they Google and why they should ignore it. Defence lawyers could be invited to make submissions about what to tell them.

10. The government is working on these issues (for instance, the Law Commission addressed some of them in a recent report), but it’s not happening very quickly.

11. Bloggers who may want to resist any attempt to control their speech might reflect on this possibility: if it can be shown that they have published some inaccurate, or suppressed, or prejudicial material, and it has improperly influenced a jury, this may give defence lawyers grounds to argue on appeal for a conviction to be overturned. Imagine if Weatherston’s lawyers got his conviction overturned because of prejudicial publicity. It’s that prospect that should make bloggers save their comments until after the trial, as much as any fear of a contempt action against them.

Topics: Contempt of Court, Internet issues | 9 Comments »

9 Responses to “Clayton’s defence”

  1. ross Says:
    August 1st, 2009 at 11:05 pm

    > We must start to assume that at least one of those jurors is going to Google, because it’s becoming so instinctive.

    Yes, but one juror is unlikely to determine the outcome of the jury’s deliberations. Even if that juror votes to acquit, the jury might decide to convict and could have the numbers to do so.

    > Imagine if Weatherston’s lawyers got his conviction overturned because of prejudicial publicity.

    Well, there was potentially prejudicial publicity and it came from Dr Warren Young, Deputy President of the Law Commission. Young said that the defence of provocation should be abolished because no reasonable person kills.

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