Tag Archives: fair trial

An argument for more open courts in the digital era


My submission in response to the Supreme Court of Queensland’s comprehensive issues paper Electronic Publication of Court Proceedings argues that the advent of digital technologies means the courts should be more open to the public than ever before.

A committee of judges of the Supreme Court released the issues paper in June, seeking views on the potential for the audio-visual recording of court proceedings and possible livestreaming or broadcast of all or part of the proceedings.

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Whatever the outcome of the process, the report stands as an excellent contribution to the literature in the field and a useful resource for students and academics for its comparative and comprehensive coverage of the topic and for the currency of the material.

It backgrounded the fundamental principles of both open justice and the right to a fair trial before considering the potential impact of electronic publication on various personnel, particularly jurors, witnesses and judges. It reported upon international and interstate developments in the field and discussed recent experiences in both Queensland and other jurisdictions where some level of recording or publication has been permitted.

The ultimate outcome of the process will inevitably also be influenced by both human and technical resources available for recording, editing and courtroom management of the logistics.

My own submission was relatively brief and addressed a select few of the issues and suggested one approach for a way forward fully embracing open justice in the digital era.

  1. Changing notion of open justice for the public and the media

The issues paper addressed the principle of open justice  and quite rightly highlights the importance of proceedings being conducted in open court. It portrayed the media’s right to report upon proceedings as “an adjunct of the right to attend court”, using the oft-quoted expression of the media being the “eyes and the ears” of the general public in the courtroom.

While this traditional approach holds true, the advent of the Internet and social media mean that there are now many more “eyes and ears” of the general public witnessing and relaying information about court processes than there were in days of yore. Ordinary citizens, bloggers and ‘citizen journalists’ offer their own versions of courtroom events via microblogs on Facebook and Twitter as well as through extended blogging and commentary media.

Thus I suggested there were two key questions that could help shape the court’s deliberations:

  1. Does modern technology provide a cheap and simple mechanism for streaming ALL court rooms via a single website or interface? and
  2. Should the mainstream news media be privileged in certain situations by being allowed to film in the courtroom and broadcast sections of such footage?

The first question turned the tables on much of the report which seemed preoccupied with reasons for restricting access and publication. My question suggested the default situation should be to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically. It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location. The final point of my submission suggested a system for making this possible. My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My second question positions the mainstream media as a select group with special commercial and public interest needs for providing their audiences with edited footage in cases with a high level of newsworthiness. As explained below, such a level of access can be addressed on a case by case basis and the presiding judge could indeed retain the discretion on the level of access allowed and the conditions of its use.

  1. Concerns over selective reportage

On several occasions the paper expresses concern over the potential for the media’s highly selective use of camera angles, audio and sections of proceedings. I suggest this is the very nature of the news media and the government, the executive and the judiciary have voiced concern at this phenomenon in the centuries since the media first took on the role as the Fourth Estate in a democracy. It is the price for media freedom in systems where editors and news directors (rather than politicians and judges) decide upon the newsworthiness of a story. There are already numerous devices available to the courts to address the potential for sensationalised or inaccurate reporting in the domain of contempt of court (in its sub judice, disobedience and scandalising iterations) and via the loss of the fair and accurate reporting defence to resulting defamation actions. Further, media outlets need to be aware that such privileges might be withdrawn for selected outlets if they are not accompanied by the due level of responsibility detailed by the presiding judge in the granting of such permissions.

  1. Production standards required for mainstream media

While all mainstream media would prefer the highest quality of recorded material, all news media now broadcast both online and on radio and television much more citizen-generated content which is sometimes of the poorest amateur quality. The news priority of the material now takes precedence over the production quality of the audio and vision. Highly blurred and pixellated material now finds its way into even the most expensively produced programs if that is the only actuality available to help tell a compelling story. This means that if the general livestreaming option is the only one available to the media, and if they are allowed to record and rebroadcast it, then they will do so if the material is newsworthy enough.

  1. A relatively cheap and simple system of implementation

This preliminary discussion backgrounds my very simple proposal which I believe would address both the need for open justice and the concerns over the potential for interference with the administration of justice and the opportunity for accused persons to get a fair trial. It is as follows:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

© Mark Pearson 2015

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Police Facebook wall raises fair trial questions


Sunday Mail reporter Anthony Gough called me last week seeking my views on a Queensland Police Service Facebook site featuring public comments on crimes and arrests.

Of course, before making a media comment on the matter I took a closer look at the site.

I quickly formed the view that it seemed an excellent community policing tool and a great way for police to get information about unsolved crimes but that many comments crossed the line once suspects had been arrested.

One comment called for a firing squad for a suspect charged over an assault on a police officer. A common view was that despite good police work in making an arrest, justice would not be done in the courts and the suspects would get off with a mere ‘slap on the wrist’.

My interview featured in an article in the Sunday Mail yesterday (June 19) headed ‘Police social media site a disgracebook’.

The article became the most viewed item on the newspaper’s site yesterday and remains in the top ten most popular items this morning (June 20).

It has already generated almost 400 ‘likes’ and comments on the police Facebook wall where it was republished with the warning: “A timely reminder why we ask you to familiarise yourself with the terms of use of the QPS page, and to be circumspect in your comments.”

Gough quoted me as saying some of the public comments about arrests could jeopardise convictions and perhaps even lead to acquittals.

“Police need to be concerned about this because prejudicial comments about arrests can actually finish up jeopardising the trial,” I told him.

“It may be counterproductive for a conviction or it may cause a delay.

“Either way it’s a huge cost to the community and I’m surprised the minister for police and the attorney-general are allowing this to continue.”

I questioned whether it was appropriate for the police service to be hosting a site with such comments and suggested it could prompt actions for contempt of court or defamation suits.

Criminal defence lawyer Bill Potts shared my concerns.

QPS media director Kym Charlton was quoted as saying the police were aware of the legal issues but felt the benefits outweighed the risks and the site was monitored and the users educated on appropriate use.

It was only after I revisited the QPS Facebook site after the interview that I found even more concerning material.

A 19-year-old man had been charged with armed assault after allegedly hitting a five-year-old boy with a golf club. The police report outlined the basic facts, then the public let fly with scores of comments:

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag.”

“Any one who can attack a young child like that needs to be put in the prison system and not protected lets see him be such a big man when other prisnors find out he injured a 5 year old boy, i got to say i do not think they will be treating him withh open arms….justice i think…”

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag. HOW DARE YOU! It’s people like you that make me sick to the stomach.”

A relative of the victim entered the fray: “No Jason and Julia – He is just pure scum and the facts are all there. Agree with Steph. It was not on the backswing and our nephew was not in the way. Totally unprovoked attack. I hope this horrible man gets everything he deserves.”

A Queensland police moderator called for restraint: “We understand the emotion that incidents like this evoke. Please keep it civil. Offensive language posts deleted.”

The following day the boy’s father entered the discussion: “Just to clear things up for everyone, it was my boy who was hit & this was no accident. The guy was standing near the door of the shop at the range and as we walked in he held the club up as to hit me but he side stepped me and took a full “baseball style” swing which hit my son in the neck. [deleted] you will be pleased to know i used the clause in the law you described. My son is recovering & we can only hope justice is done to keep this freak from harming anyone else. For all the people who are commenting on the two sides to every story i agree, i don’t know what his side of the story is, all i can say is we had never seen this man before, we did not speak to him, it was a totally random, violent & cowardly attack. It is pure luck that my sons injuries were not more serious.”

In the interim the accused had appeared in court on the serious charges and had been refused bail.

From the moment of his arrest, the matter had become part of the justice process, when public comment has traditionally been restricted to fair and accurate reports of what occurs in the courtroom – along with the basic undisputed facts of the matter.

The traditional media still have to work within these rules or face charges of sub judice contempt of court for posing a substantial risk to the fair trial of the accused. It is a charge that has seen Australian journalists fined and jailed.

There is particular sensitivity about comments going to the guilt or innocence of the accused, and many of the police media site comments do exactly that.

Another important aspect of this law is that the comments of witnesses should not be published during the sub judice period so it does not affect their testimony when given as evidence in court.

Witnesses are not expected to know this themselves but here the Queensland police site provides the platform for them to vent their views and give their versions of events that should be reserved for the appropriate time in the courtroom.

In this matter the father was a key witness and mainstream media would have held back on publishing his comments unless as a fair and accurate report of his testimony in court.

Another factor is that child victims and witnesses cannot be identified. By hosting the publication of the father’s comment under his name, the police Facebook page is indirectly identifying the child.

The QPS Facebook site has an audience of more than 200,000, higher than most daily newspapers. Other law enforcement agencies with a social media presence.  Examples are the Northern Territory Police Force, SA Police News, Victoria Police Forcebook, and NSW Police Force.

They are a wonderful emergency communication tool and the Queensland Police site was used to great effect during last summer’s floods.

They are also an excellent vehicle for police to get information on unsolved crimes. Postings before a suspect has been arrested are not subject to contempt laws, although there is always the ongoing risk of defamation.

Apparently the technology does not allow for certain items to be comment-free, so the personnel monitoring the site need to delete offensive comments already posted.

I suggest they restrict items to the emergency, community information and intelligence seeking functions, deleting the announcements of arrests -unless a mechanism can be found for running them without comments.

The alternative would be a major overhaul of the justice publicity rules to accommodate the social media era, which would give us a system closer to that in the US where there is much more freedom to comment on cases in progress.

But such a change would need to come via legislative changes across Australia’s nine state, and territory and federal jurisdictions, not through via the communication offices of police forces.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2011


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