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'A free press or a fair trial?'

28th October 2008

Which is more important – freedom of the press or the right to a fair trial? This was the question posed by BBC newsreader Maxine Mawhinney who chaired a public forum hosted by POLIS, the LSE Law Department and the BBC College of Journalism, held on Thursday 23rd Oct.

While the panelists generally agreed that the press was sometimes covering trials irresponsibly, there were vastly differing perspective on the role government should play in limiting the freedom of the press. The Daily Telegraph's legal affairs editor Joshua Rozenberg argued that "the interest of a fair trial comes before the interest of a free press." Guardian writer and author of Flat Earth News Nick Davies echoed the sentiment of BCL Burton Copeland Barrister Mark Haslam that enforcement of contempt law was crumbling. They blamed irresponsible reporting partly on commercial pressure but also on inaccurate Online reports. Yet Davies and Haslam disagreed on the solution to this erosion of the fundamental right to a fair trial. Haslam saw the fairness of a trial as paramount, calling into question the impartiality of jurors in the face of adverse publicity. Haslam argued for the strengthening of contempt laws and limits on the media. Davies supported the complete dissolution of laws of contempt, placing ultimate faith in the intelligence and fairness of jurors. Rozenberg agreed in part with Haslam, calling for the complete rethinking of the 1981 Contempt of Court Act to consider the Internet as a potential medium for prejudicing the jury. But in the end, he placed the ultimate trust in juries to 'do the right thing'.

On the question posed by Mawhinney, Davies and American lawyer and USC Annenberg legal scholar Jonathon Kotler both came down on the side of freedom of the media, even if the industry was a 'feral beast', driven by commercial interests and 24/7 digital deadlines. Davies and Kotler noted major cases, including the OJ Simpson trial, where the rampant press coverage did not lead to the miscarriage of justice but rather exposed the true injustices, including the concoction of evidence by rogue police and ineffective prosecutors. Kotler argued that the US system, founded on the principle of freedom of the press, did not conflict with the constitutional right to a fair trial. "The system works well, even under trying circumstances," said Kotler. He concluded, "If the press didn't tell you, who would? Who indeed?" This was a sentiment all the panelists could agree on.

Report by Polis Intern Eli Lipmen 

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