Jan 16, 2012
McDermott on media standards and the Lawrence case
We are delighted to welcome this guess post from Yvonne McDermott, Lecturer in Law at Bangor Law School. Yvonne’’s research interests are international criminal law, international criminal procedure, human rights, and refugee law
First, I would like to thank David Keane for inviting me to post on this important case and the two landmark convictions that were handed down last week. When extending the invite, Dave asked me what I thought of the double jeopardy elements of the case, largely, I suspect, because I wrote about the permissible exceptions to the rule under international human rights and comparative criminal law in my chapter to our forthcoming edited book, The Challenge of Human Rights: Past, Present and Future (Cheltenham: Edward Elgar, 2012).
In fact, I think that the double jeopardy element, while it has been the subject of some criticism, is the least worrisome element of the case. Protocol No. 7 to the ECHR was adopted in 1984, and Article 4 thereof allows a case to be reopened in accordance with domestic law as a result of the discovery of new evidence; this exception was also referred to by the UN Human Rights Committee in its General Comment 32 of 2007. A number of states have changed their legislation to include this exception to the double jeopardy rule, including Ireland, Denmark, Germany, and of course the United Kingdom. In the Lawrence case, as Gary Dobson was the only defendant facing a second trial, and the new piece of DNA evidence which was discovered on Dobson’s jacket was indeed significant- the chance of the blood stain not having come from the victim was reportedly a billion to one- I feel that the retrial was justified.
On the other hand, I have some misgivings about the conduct of the media in the case- from the Daily Mail’s infamous ‘MURDERERS’ headline to the witch hunt of the remaining three main suspects in the aftermath of the Dobson/Norris judgment. To be clear, may I state at the outset that I have no doubt that the world is a better place with Dobson and Norris behind bars. The covert police videos taken in Dobson’s apartment reveal the purulent racism and hateful characters of both men.[1]
It is clear that the two men did not act in isolation, and that the murder was carried out by a gang of white youths. So immediately after the sentencing judgment was passed, media attention turned to the other main suspects in the case, Jamie and Neil Acourt and Luke Knight. The Guardian reported that Neil Acourt has the temerity to park his car outside of his front door, ‘apparently so that he can avoid being photographed as he leaves his home.’ Another article in the same paper reports that Jamie Acourt’s girlfriend runs a shop selling baby clothes, in case you’re interested, and features the reactions of shocked neighbours as the reporter reveals ‘the past suspicions hanging over him’. The Guardian is far from alone in this reporting style; BBC News featured the three mens’ full names and faces, despite the fact that they have either been acquitted or have never been formally charged with the murder, as did the Mirror and countless other newspapers. This type of reporting raises serious questions over the accused mens’ right to privacy, and that of their families as well as the presumption of innocence.
It becomes even more serious in light of reports by the Guardian that police now believe that Luke Knight may not have been there on the night of the murder. Indeed, it would seem that there are up to nine further suspects at this time, but the Acourt brothers and Luke Knight have been the top target since the Daily Mail published their names and faces along with those of Dobson and Norris on the paper’s front page in 1997, with the note that, ‘The Mail accuses these men of killing. If we are wrong, let them sue us.’
So why didn’t they sue the Daily Mail, as the paper taunted them to do? The Daily Mail’s editor, in a jubilant and triumphant letter after the Norris and Dobson conviction, stated that the paper’s position at the time was that, ‘the b**tards haven’t got any reputation to lose’. But the threat of five unemployed school leavers actually taking on the large media conglomerate without the possibility of legal aid to do so would seem fanciful at best, and we can suppose that the paper knew this just as well. Contingency (or ‘no win, no fee’) arrangements have only become commonplace in the UK since 1999, when the Access to Justice Act was published. In the Leveson Inquiry last November, Chris Jefferies (Joanna Yeates’ landlord) strongly advocated against a law which is currently going through the UK Parliament that would abolish the use of such fee agreements with lawyers. Once passed, it will effectively mean that only millionaires can sue for libel. Those who have been following the Chris Jefferies and the Kate and Gerry McCann libel settlements will accept the implications of this for the already-serious incidents of ‘trial by media’.
Those who refuse to speak to a media which has already presupposed their guilt are seen to be admitting their guilt through their silence; those who speak to the media, like the McCanns, have their words twisted and used against them. Along with the presumption of innocence, the treatment of the remaining alleged suspects in the case raises issues for the right to silence, or as the Daily Mail’s editor preferred to call it, the ‘sickening… [and] arrogant contempt of the suspects in refusing to answer any questions at the inquest’. The right to silence and the prosecutorial burden of proof are two cornerstones of the common law tradition, whether the Daily Mail likes it or not. The exercise of this right should not provide any fodder for those who wish to drop media standards to the point of witch-hunting and finger-pointing.
Moreover, if any of these individuals find themselves before a jury in the near future, there is a strong chance of jury bias against them and that all of this media hounding of the three men may prejudice any future proceedings. There remains a possibility that the Attorney General will take charges under the Contempt of Court Act 1981. Under the Act, any publications made regarding ‘active court proceedings’ which are liable to prejudice those proceedings can be subject to contempt proceedings. A case on point is the contempt case taken against the Daily Star for statements made regarding an incident which lead to the arrest of two premiership footballers. Although the case never went to court, the articles were still held to be in contempt, and the paper was fined £60,000. After the Chris Jeffries case, the Attorney General promised a tougher stance on this form of contempt, saying: ‘We need to avoid a situation where trials cannot take place or are prejudiced as a result of irrelevant or improper material being published, whether in print form or on the internet, in such a way that a trial becomes impossible’.
However, there is a possible loophole to the application of the 1981 Act in these circumstances. Under Schedule 1, proceedings only become ‘active’ when an arrest has been made. It would seem, therefore, that the papers can carry on invading these individuals’ privacy and revealing allegations about them so long as an arrest isn’t made.
While the Lawrence case is far from complete until all of the offenders are brought to justice and while of course there is some public interest in seeing who those who accompanied Dobson and Norris on that fateful night might be, the treatment of these three suspects by many media outlets remains a cause for concern. Their reportage may have an impact on the impartiality of future court proceedings, is a clear breach of the right to privacy of those who are innocent until proven otherwise (and their families), and may lead to violent retribution from members of the public who believe them to be guilty, in spite of their legal innocence. This raises serious questions about the role in the media in criminal cases- should it be the job of the papers to ‘name and blame’ accused persons and decry their guilt before any formal proceedings? I think that many of us would prefer to leave the judging to the judiciary.
[1] Whether the use of covert recording was a justified derogation from the right to privacy is a question for another day. If litigated, the question would come down to the extent to which the extent of the surveillance was proportionate to its aims. If it was seen to be proportionate (and it is hard to make a judgment on this without knowing the full facts, particularly the duration of the surveillance), it would be seen to fall within the Article 8(2) ECHR exception, in light of the UK Regulation of Investigatory Powers Act 2000 (see particularly s. 28). Before the enactment of that piece of legislation, the UK had been found to have breached the right to privacy under Article 8 in a number of cases, including Malone v. UK (1984) 7 EHRR 14), P.G. and J.H. v. UK, Application No. 44787/98, 25 September 2001 and Khan v. UK (2001) 31 EHRR 1016.
