Abstracts Category : Other

Pre-trial publicity: free speech versus fair trial

by Shawn Marvin Flowers

News coverage of high profile criminal matters has increased in South Africa. Such matters areof public concern, as every citizen has a right to receive and impart information and to debateopenly 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 ofjudicial matters which such reportage stimulates. However, criminal trials of high profileaccused persons such as Oscar Pistorius, Shrien Dewani and J Arthur Brown, turn easily into ashow with strong entertainment value, giving the media strong profitmaking reasons to coverit. In their pursuit of profit and in seeking to satisfy the curiosity of their readers, listeners orviewers, the media regularly resort to trial by media or adverse pre-trial publicity. Trial bymedia is nothing more than commercially motivated expression which does not warrantconstitutional protection.At the receiving end of such coverage are accused persons. Public censure of crime andof accused persons which follows trial by media should not be imposed on the innocent. Theright to a fair trial requires that an accused be treated fairly from the inception of the criminalprocess, from which point the person suspected of committing the crime in question isconsidered innocent. Any pre-trial process which implies that the accused is guilty, includingany such process influenced by media reports surrounding criminal offences, violates thepresumption of innocence.Despite the availability of remedies, the media in South Africa usually are not held toaccount 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 suchreporting on the judicial process, the administration of justice and the fair trial rights ofaccused persons. The reason for this is usually the hesitation on the part of judges torecognise their susceptibility to extraneous matters. Judges should not be placed in a positionwhere 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.Advisors/Committee Members: Koen, Raymond (advisor).