News Criminal Law

By Satomi Hamon


Trial by Media NOT a Fair Trial

‘Trial by media’ is a phrase that gets tossed around ever-increasingly, particularly as a result of the rise and rise of social media.  In essence, it refers to the commercial and social media coverage of a criminal case by reporting an accused person as guilty prior to their trial regardless of any plea or verdict in a Court of law.

Trials by media and unfair media coverage of criminal matters tear at the heart of many of the fundamental aspects of the criminal justice system, including the substantial undermining of the presumption of innocence and the real risk of the erosion of the right to a fair trial.

These days, the media often conducts their own ‘kangaroo’ investigation and can sway public opinion against an accused person even before the Court takes cognisance of the matter and sometimes even before a person is charged. Extensive media coverage often elevates the average Joe (or Joanne) to the armchair Judge, Jury and executioner – all from the comfort of their own home.

Much of the commercial media coverage and social media commentary on criminal cases is sensational and prejudicial. Often, only cases involving serious or factually interesting offences gain media attention.  This has the very real potential in tainting the jury (or even judge) if the matter goes to trial.  Sometimes social media commentary can derail a trial when it is in full swing, leading to a mistrial and the discharge of a jury.  There is also the very real possibility of irreparable damage to a person’s reputation when reporting on allegations or charges – and not about convictions or guilty pleas.  Decisions not to charge and acquittals are nowhere near as sexy and often don’t make the headlines.

If a person is well-known, a sporting star or celebrity then even the slightest indiscretion is likely to make the front page.  Did you notice the excessive media coverage of Greg Inglis’ pretty bog-standard drink driving matter this week?  It was front page news on at least two days in the Murdoch press, despite it not having even made it to the Courts and despite it being not particularly newsworthy.

While sensational coverage of high profile and interesting crimes will always attract readers, it is important to recognise how this can undermine the right to a fair trial and impact upon the function of the justice system itself. One problem is balancing that right with the concept of freedom of speech and public interest (including ‘open justice’), all of which are important virtues of a democratic society.

Our morbid fascination in the misfortune and misadventures of our brothers and sisters is interesting, particularly when it comes to the rich and famous – which no doubt has an element of ‘tall-poppy syndrome’ built-in.  It doesn’t reflect well on us, however and unfortunately it doesn’t have a good influence on the criminal justice system.