Pre-trial publicity: free speech versus fair trial
Flowers, Shawn Marvin
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News coverage of high profile criminal matters has increased in South Africa. Such matters are of public concern, as every citizen has a right to receive and impart information and to debate openly and frankly matters which are of public concern, including matters before the courts. The legitimacy of the courts is dependent on robust media reportage and public scrutiny of judicial matters which such reportage stimulates. However, criminal trials of high profile accused persons such as Oscar Pistorius, Shrien Dewani and J Arthur Brown, turn easily into a show with strong entertainment value, giving the media strong profitmaking reasons to cover it. In their pursuit of profit and in seeking to satisfy the curiosity of their readers, listeners or viewers, the media regularly resort to trial by media or adverse pre-trial publicity. Trial by media is nothing more than commercially motivated expression which does not warrant constitutional protection. At the receiving end of such coverage are accused persons. Public censure of crime and of accused persons which follows trial by media should not be imposed on the innocent. The right to a fair trial requires that an accused be treated fairly from the inception of the criminal process, from which point the person suspected of committing the crime in question is considered innocent. Any pre-trial process which implies that the accused is guilty, including any such process influenced by media reports surrounding criminal offences, violates the presumption of innocence. Despite the availability of remedies, the media in South Africa usually are not held to account for their actions and persist with adverse, biased and irresponsible pre-trial reporting. Courts have shown a tendency to protect the media in these cases, despite the effect of such reporting on the judicial process, the administration of justice and the fair trial rights of accused persons. The reason for this is usually the hesitation on the part of judges to recognise their susceptibility to extraneous matters. Judges should not be placed in a position where their independence and impartiality are questioned as a result of media sensationalism. Where the media create mistrust in the integrity of the judiciary, the rule of law is in peril.