Categorized | Criminal Justice, Law Updates

The Oscar Pistorius media circus

The Oscar Pistorius media circus

You would have had to be living in a cave for the past week to have missed the Oscar Pistorius story. It bids fair to outdo the O J Simpson trial in terms of media coverage.

Even before his bail application the world had read that a bloodied cricket bat would be a key piece of evidence in the trial, that Reeva Steenkamp was wearing white shorts and a black vest when she died and that her skull had been crushed. The media was also full of stories about Pistorius’s character flaws.

Allegations of what happened on Valentine’s Day emerged in the Pretoria courtroom. Sensational evidence was produced and then vigorously refuted. It is apparently customary for the prosecution to lay out more of its case at this stage, which means that the defence has to reveal its hand to keep its client out of jail. Then came the dismissal of the lead investigator in this case because he himself is facing murder charges, and now the release of Pistorius on bail.

What is surprising is the amount of detail the South African press has published about the state’s case against Pistorius. In the UK, reporting restrictions would probably have been imposed and leaked details of a criminal investigation would be likely to put a publication at risk of being held in contempt of court.

The law in the two countries is not actually all that different. In South Africa the ‘sub judice rule’, which allows for contempt of court prosecutions if media reports could prejudice a trial, is still part of South African law. But the full rein of reporting in this and in other cases suggests that, in South Africa, it is honoured more in the breach than in the observance.

A major difference is the jury system. South Africa abolished its jury system eighty years ago. After the transition to democracy in 1994 consideration was given to its restoration, but it was ruled out on practical grounds. The 11 official languages in South Africa would have meant prohibitive interpreting costs. In its absence judgement is made by a judge supported by two assessors, usually current or retired magistrates.

So there are no South African jurors to worry about, to warn not to dabble on the internet and to threaten with criminal proceedings for transgressions. Unlike jurors, judges are trained to focus on the evidence in court, not on what the media is reporting, and will, it is held, not easily be swayed by gossip or media allegations.

The Vicky Price case has turned the spotlight on our jury system. Even though juries decide less than 1% of all criminal cases in England and Wales, defendants in these cases are charged with the most serious criminal offences. Are juries fair? That was the question posed by the Ministry of Justice in 2009, and they commissioned research from a University College London team led by Professor Cheryl Thomas.

The scope of the UCL research was impressive, and the broad conclusion was that juries are indeed fair and efficient (see blog post of 23 February 2010). Significantly, the review found that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case, and 20% of jurors said they found it difficult to put these reports out of their mind while serving as a juror. All jurors who looked for information about their case during the trial looked on the internet, thereby admitting to something they would have been told by the judge not to do.

But there is no room for complacency. Already there is a move towards big trials being heard without juries, and the draconian justice and security bill is currently before Parliament. This will introduce closed material procedures – secret courts – into English civil law in cases where national security is said to be at stake. It won’t stop there. Secrecy is habit-forming. There should be no compromise on the traditions of English common law, and this is a ruthless measure that amounts to a charter for cover-ups.

This post was written by:

- who has written 460 posts on Upper Case – The Anya Legal Journal.

Mike Gribbin is a retired Civil Servant with wide experience, including the drafting and implementation of Parliamentary legislation and regulations. He is the editor of “Criminal Offences Handbook”, a uniquely comprehensive guide to more than one thousand ways to fall foul of UK criminal law. He is Editor of the Upper Case Legal Journal and has been writing blog posts for the past eight years.

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