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Trial By Media

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Having recently watched the FX production of ‘The People v O.J. Simpson: American Crime Story’, I was interested in the role that the media played in the trial.  Beginning almost instantly after the murders of Nicole Brown Simpson and Ronald Lyle Goldman, the media focused heavily on both the NFL player himself and the lawyers on either side.  For example, the Los Angeles Times covered the case on its front page for over 300 days after the murders.  Similarly, a number of TV networks gave more air time to the case than to the Bosnian War and Oklahoma City bombing combined.

During the O.J. case, not only did the media play an external influence, but some legal professionals have also claimed it played an internal role.  Judge Ito ruled that live camera coverage of the case was warranted, and thus allowed the media to play a significant role inside the court room.  Ito has also been criticised in comparison to Judge Fujisaki who judged the Simpson civil trial; Fujisaki banned TV cameras in the courtroom and implemented a gag order on lawyers.  Thus, Fujisaki was able to ‘pull the plug on circus antics in the O.J. Simpson case’ [Gale Holland].

Throughout late 20th and early 21st century America, there have been a number of cases where the media has been criticised for its overt implications on the doctrine of a ‘fair trial’.  For example, the media played a significant role in the impeachment trials of Bill Clinton.

The 2007 federal trial of United States v Libby was also notable for its media presence, including the increasingly popular blog form.  In this case, former high-ranking official in the George W Bush administration, Lewis Libby, was on trial for interfering with special prosecutor Patrick Fitzgerald’s criminal investigation of the Plame affair.  This trial was notable as Robert Cox, president of the Media Bloggers Association, claimed the case was ‘the first federal case for which independent bloggers have been given official credentials along with reporters from the traditional news media’.  On February 26th, it was reported that one of the twelve jurors had been ‘dismissed’ because she ‘was exposed to information about the trial’ [Richard Schmitt], thus indicating the potentially harmful role the media played.  This example conveys the danger of ‘trial by media’; it is important, particularly in America as per the first amendment rights, that the press is allowed freedom of expression.  However, when the press becomes too involved so that it infringes on the accused right to a ‘fair trial’, that is when the danger becomes too great.

In light of this, in England there are far greater restrictions on the role that the media can have in a trial.  As a result of contempt of court orders, the press is limited in what it can report on a trial; upon arrest of a suspect, the press is automatically obliged to restrict reporting of legal proceedings.  As Owen Boycott claims, ‘in an era where jurors are increasingly tempted to browse the internet for details… the problem of how to prevent them being unduly influenced is becoming more problematic’.  Thus, as individuals have a far greater opportunity to search for information, the media is under far greater restrictions on what it can express.  In order to take into consideration the recent social media advancements, the Attorney General in 2013 issued official statements highlighting the need for care by members of the public who came into contact with the justice system in their use of social media.  The Attorney General stated ‘this is not about telling people what they can or cannot talk about on social media’, claiming rather the guidelines were to protect the rights of citizens and facilitate lawfulness.

Therefore, although the case is different in Britain and America, in both countries there is a recognition of the significant danger the media can play in the application of a fair trial.  A fair trial is one of the most sacred aspects of the modern legal system, and thus it is important to protect the rights of citizens, however without infringing too significantly on the press’ right to expression.

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To Defame Or Not To Defame?

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Defamation laws have existed from as early as the Roman times, protecting reputations from unwarranted abuse. As these laws have remained throughout the years, social norms towards freedom of speech have greatly developed. This begs the question of whether defamation still has a place in the 21st century. The pertinent question of whether the infringement on freedom of speech is justified in defamation laws is vital to a democratic society, as it enables public debate, inclusive of political figures and their policies, producing an informed electorate. Criticism must not be stifled to produce checks and balances holding governments accountable, preventing abuse of power.

The common law definition of a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower them in the esteem of right-thinking members of society. According to these laws, the claimant must prove three things: (1) that the statement was defamatory, (2) that it was directed at them, and (3) that it was published to third parties. In the common law, there are three main available defenses for the plaintiff: (1) justification (ie truth), (2) fair comment on matters of public interest, and (3) qualified privilege.

Even with these constitutional structures, there are instances where defamation laws appear to be unjust in a democracy, favouring large organisations and infringing on freedom of speech, disregarding public interest. There are also cases where in which defamation laws have outlined a standard for good journalism, and helped truth to triumph.

Mcdonald’s v. Steel & Morris

McDonald’s Corporation v Steel & Morris is first of the 2 cases that provide some insight into the issues involving defamation laws.

The longest trial in the history of common law to date, started with a leaflet titled, “What’s wrong with McDonald’s”, containing libellous information about the multinational’s food products, inhumane conditions for cattle, and treatment of its workers. This case is often said to highlight how defamation laws have a tendency to favour wealthy multinational organisations over individuals. This is mostly for two reasons.

Firstly, at the time, legal aid could not be provided in defamation cases. Hence, Steel and Morris became their own litigants in person, as they could not afford to pay for a private lawyer. When up against high-caliber lawyers representing McDonald’s, it was apparent that the relative lack of resources, in the form of legal knowledge, was a major disadvantage.

Secondly, the balance of probabilities places the burden of proof on the plaintiffs in defenses of justification and fair comment, giving the upper hand to large companies. Especially since the defamation laws assume damage to reputation without proof, as it is more difficult to prove quantifiable and immediate damage to a company’s reputation when compared to reputation of an individual. Large organisations are thus largely capable of suing any person who is supposed a risk to their reputation at no expense to themselves, all whilst subjecting plaintiffs to proving the truth of every defamatory statement made. This expensive and time-consuming burden has greater tangible effects on individuals than on wealthy organisations, which is not mitigated or considered in any way by these defamation laws.

These two factors lead to the ruling in the European Court of Human Rights that these laws violate Article 6 of the European Convention of Human Rights – the right to a fair trial.

Lèse Majesté Laws in Thailand

Although they differ slightly from the common law, Thailand’s lese majeste laws perfectly illustrate the potential harms defamation laws pose to freedom of speech and other liberties.

Article 112 of the Thai Criminal Code states that “anyone who defames, insults or threatens the King, the Queen, the hier-apparent, or the regent may be punishable by 3-5 year of imprisonment.” The values underpinning this law are further enshrined in recent constitutional developments, which state that, “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” This charge can be filed by anyone, against anyone, but must be investigated formally by the police.

Since the military coup in 2014, the number of arrests has more than doubled from the previous 12 years, gathering worldwide attention. The laws have been criticized for being used as a political weapon to silent dissenting views and political opposition. There are several reasons to believe that these accusations are true. One of them being that the laws have no clear definition as to what constitutes as insulting, allowing a broad interpretation and application of the law. This results in trivial cases where posting images on Facebook of the late King Bhumibol’s favourite dog, and liking it is deemed to be offensive, hence warranting years of imprisonment.

Another reason is that the laws sidestep the concept of equality before the law, and enable authorities to detain the accused for excessive pre-trial periods, denying the right to a fair trial. This unreasonable pretrial detention deters activists and public figures opposing the monarchy, as they will still be stripped of their liberties, even before being given the opportunity to prove their innocence. Moreover, the punishment is massively disproportionate, as the jail penalty without bail applies to each charge. The longest lese majeste penalty to date is 70 years without bail for 10 counts, reduced to 35 years upon confession. Even when taking into account the widespread respect for the King amongst members of the public, this law leads to penalties greatly disproportionate to the crime’s worth. In addition to this, the trials actively defy an order by the Prime Minister for lese majeste cases to be tried at civilian courts, instead trialling at military tribunals. Not only does this lead to far harsher sentences, but this also leads to poorer representation of the defendant, due to the relative strictness of the courts. More importantly, the act of the military-led government in openly going against an order is authoritarian, and suggests a disregard for constitutional values.

The laws do not allow truth to be a defense, but rather, sees it to be an exacerbating factor. This is highly questionable, especially upon realisation that the defamed in the context of these lese majeste laws is always a public figure. Even in a monarchy, public figures who claim to always act in the interest of the public will be subject to scrutiny, which acts as a form of deterrence of acts against the public interest. In fact, there are even fewer checks and balances in a monarchy, compared to a democracy, as there is no voting mechanism with respect to royalty. This means that with these lese majeste laws, there are little to no practical disincentives preventing abuse of power by royalty, and there is no means by which the public will be informed, as it would also be considered to be defamatory. If anything, public figures, including the royalty, should be expected to be able to defend themselves against the truth, and should be held responsible otherwise, especially when it is in the public’s interest to know.

From this, we can see the potential harms posed by authorities in defamation laws.

However, there have also been cases where defamation laws have proved to be beneficial in protecting the dissemination of truth.

Reynold’s v. Times Newspaper ltd.

Reynolds v Times Newspaper Ltd. was a landmark case which lead to the development of the defense of public interest in the Defamation Act 2013. In this, Lord Nicholls outlined 10 criteria for the defense of qualified privilege, with regard to the publication of defamatory statements in the public’s interest. These 10 criteria are:

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

These criteria help defamation laws clarify the line between protection of reputation and freedom of speech. In particular, public figures such as politicians, who are constantly subjected to public scrutiny by virtue of their occupations, will not be wrongly protected by these laws.

Especially with regard to political figures, it is crucial that freedom of speech be maintained in order to act as checks and balances preventing abuse of authority. Being subjected to harsh criticism deters these figures from abusing the mandate provided to them upon being voted into the government by the public. Should the people know that authorities are not acting for the public interest, through the media, they are able to take measures against the figures in question, by simply not voting for them.

In addition to this, freedom of speech is integral in democratic systems. The diversity of ideas and spread of information through the media is an important means by which voters decide who to vote for. If journalists were blocked from publishing their work, despite it being in the public’s interest to do so, then the various ideas members of the public are exposed to are vastly limited, leading to a misinformed voter base. This undermines a democratic system, as the very voters may fail to vote for the politicians whom they believe will act in their best interests, meaning that representation of the people is inaccurate.

Irving v. Penguin Books

Irving v Penguin Books also highlights this fact. Deborah Lipstadt, in her book “Denying the Holocaust: the Growing Assault on Truth and Memory” stated that Irving is a “falsifier of evidence”. Upon the publication of this, it is apparent that the words damaged Irving’s reputation. In reducing the sales of his books, and his image in the media, the publication reduced his income significantly, as he was financially dependent on these sales. Consequently, Irving sued Lipstadt for libel, seeing it as an opportunity for financial compensation, as well as to re-enter the media sphere. After proving Irving’s endless falsification of facts, Lipstadt won her case with the defense of justification.

Whilst the laws have infringed on Irving’s freedom of expression, and dismissed his views, they enabled Lipstadt to prevent Irving from publishing content denying the Holocaust ever again. In doing this, other Holocaust deniers will be less widely accepted, and the spread of these falsehoods will cease. This defamation case provided a way for the real truth to be heard, reducing the effect of relativism and multiple truths in producing a post-truth world.

It is clear from the above cases that defamation laws can be contentious, with benefits and disadvantages. Especially as the views towards free speech change and develop with time, it is a valid question to consider as to whether protection of reputations of legal entities can really supersede the fundamental values of freedom of speech.

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Sado-Masochistic Homosexuality: A legal case study

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R v Brown (Anthony Joseph) [1994] 1 A.C. (HL)

 Facts of the case

The appellants, a group of sado-masochistic homosexuals who, stimulated by drugs and alcohol, willingly and enthusiastically participated in acts of violence for sexual pleasure. The appellants were all above the required age of 21, but there was limited contact with a 15 year-old male, “K”. The activity took place in private; no complaint was ever made to the police; there were no permanent injuries or infections; safe words were used, and no medical attention was ever sought or required. Whilst the activity was recorded, it was not intended to be seen outside of this group, nor sold for profit. The police discovered this activity coincidentally through the course of Operation Spanner. Yet, there is some dispute as to whether animals were involved or not, which if they were would amount to an offence under s12 of the Sexual Offences Act 1956. Most importantly, with the possible exception on one occasion, everyone consented to this activity.

Outcome of the case

The court upheld the convictions and dismissed the appeal by a majority of 3:2. Lords Templeman, Jauncey and Lowry dismissed the appeal since it was argued that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason. Underlying this decision are two further claims: (1) where the victim has suffered harm which is actual bodily harm or worse, then the victim’s consent is no defence, and (2) the satisfying of sado-masochistic libido is no good reason. The majority also held that Articles 7 and 8 of the European Convention on Human Rights have no application here, to which the dissenting judges also agreed partially.

Lord Mustill and Lord Slynn dissented on the basis that consent is a valid defence, except in cases of grievous bodily harm or death. Lord Mustill, having assiduously examined previous cases, thought the court to be free to consider this case afresh, since the earlier cases were inconclusive. Lord Mustill used the doctrine of autonomy to posit that the law should not intrude on the private life of an individual. Lord Slynn disagreed with the majority in that such cases of private affairs, public interest should declare the defence of consent invalid.

Context of the decision

The relevant law surrounding consensual violence before the decision centres around one common law principle and three common law cases. I am discounting the Wolfenden Report because its somewhat dubious clauses only have influence amounting to the enactment of the Sexual Offences Act 1967.

Common law principle

That consent is a valid defence to common assault.

 Reg v. Coney (1882) 8 Q.B.D.

This decision held that a prizefight in public was unlawful – actual bodily harm or serious bodily harm is unlawful, notwithstanding the consent of those involved.

Cave J. argued that a blow not struck in sport and is likely or intended to do corporal hurt is an assault, unlawful and a breach of the peace, thus the consent of the person struck is immaterial. Cave J. said at p. 507

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it.”

Stephen J. added that consent is also not a defence when the activity is injurious to the public as well, and it is not in the public interest that the lives of the prize-fighters be endangered.

Rex v. Donovan [1934] 2 K.B.

This held that a private beating amounting to common assault for sexual gratification is unlawful. All of the judges disagreed with the reasoning in this case because of the common law principle stated above. Therefore, the decision in R v. Brown seems to overrule this case, thus changing the law. Yet this case may have importance in that it argues the offence is irrespective of consent.

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715

This decision held that a fight between two consenting young men was unlawful because it was not in the public interest. Indeed, Lord Lane C.J. said at p.719

“It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public.”

The position of the law before the case was roughly straightforward. However, there was a lack of clarity in the decision of Rex v. Donovan, which contradicts the common law principle for no good reason. But Coney and the Attorney-General’s Reference are both consistent with each other and the common law principlewhich leads me to disagree with Lord Mustill’s historical summary of previous cases that he asserted were inconclusive. Coney posits that actual bodily harm or worse cannot be consented to, and also adds that consent is not a defence when the activity is injurious to the public; the Attorney General’s Reference concurs on the point of public interest too.

Thus the decision in Brown affirmed the common law principle that common assault can be consented to (this underlies the court’s rejection of Donovan). The court’s decision also confirmed Coney as it states that actual bodily harm can only be consented to with good reason; in special circumstances such as boxing, which is properly regulated (Queensbury Rules), and conducted (with a referee and medical practitioners close by). Furthermore, the Court also reasserted the public interest measure, thereby also confirming Coney and the Attorney-General’s Reference.

It follows that this decision changed the law in Donovan and added the special circumstances exception to the charge of actual bodily harm or worse: it can be consented to with “good reason”.

Critical commentary

I believe that the court did reach the right decision for the following reasons:

  1. The court’s decision is consistent with earlier cases

As explained above the court’s decision is consistent with the ratio in both Reg v. Coney (1882) 8 Q.B.D. and Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715.

The line of actual bodily harm was chosen because it is consistent with the Attorney General’s Reference, not because it was easier to differentiate between no injury and some injury; it differentiates between actual bodily harm and common assault, the latter being less serious. The dissenting view that the standard of harm should be grievous bodily harm is based on no authority.

Furthermore, the court rightly holds that these acts were malum in se, and the issue of consent is not relevant. Consent is a defence in acts where there is a good reason. Boxing is permitted since it is conducted with rules, doctors and referees. The unregulated, drug-incensed activity of the appellants is unsafe and thus not a good reason.

Lastly, whilst horseplay (which has no intent to harm) has been seen as a good reason (Reg v. Bruce (1847) 2 Cox C.C. 262, Aitken [1992] 1 WLR 1006, Jones (1986) 83 Cr App R 375), I would hold that this reasoning is flawed and that does not have any impact on the present case. It is for Parliament to decide on the exceptions, such as horseplay and, in time, sado-masochism.

  1. The court is right to accept the use of the Offences Against the Person Act 1961 – it is not inappropriate

Firstly, it should not be relied upon that consent was not mentioned in the statute, as it is usual for such acts to use absolute language and leave definitions to the court[1].

Secondly, if it were construed otherwise the result would be that the infliction of serious physical injury should be exempted from the act, which is the very thing the act was enacted to protect against. The act is directed at protecting the person of individuals.

Lastly, it should be noted with care that legislation should be used to commit an act even if that legislation was not originally intended to prosecute the act. One needs only to remember the countless judgments of Lord Denning or the recent upskirting scandal involving Gina Martin, where the Metropolitan Police reopened the investigation of the basis of an old common law against ‘outraging public decency’.

  1. The court was not moved or influenced by personal morality

The court clearly acted in line with previous cases and the presence of disgust to these acts (which all judges shared) is the most humane and just reaction, and a judge must be humane and just. Furthermore, since all judges were repelled by these acts the argument that three were repelled so they dismissed the appeal and that two were repelled so they allowed the appeal is contradictory and made without proof. The oft-quoted statement of Lord Templeman that “pleasure derived from the infliction of pain is an evil thing” is in fact perfectly justifiable and sensible, and it is perfectly reasonable that a judge should pass moral judgement (provided it does not inform his judgment) in order to uphold societal values.

  1. The court was right to interfere with private affairs

This case clearly demonstrates the limits to the autonomy principle in favour of the welfare principle. Autonomy left unbound soon becomes no autonomy. As Cicero said, “we are slaves to the law so that we may be free”. Paternalistic laws, even those that are not utilitarian in nature, are often proclaimed as life-saving. One immediately recalls the law requiring each person to wear a seatbelt in a car.

Overall, I find the court’s decision to be satisfying and their view that Parliament should legislate on this matter as entirely appropriate and in line with parliamentary sovereignty.

[1] L.Q.R. 1993, 109(Oct), 540-544

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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