Antinomianism, anti - against, nomos – law , unlawful.
Antinomianism is the polar opposite of legalism, the notion that obedience to a code of religious law is necessary for salvation.
Clinton's denials
Initially, he repeatedly used the present tense "there is not a sexual relationship" with Lewinsky.
what about the past?
The next phase “there had not been an improper relationship”
Some people coin this as - legalistic doublespeak
He didn't "mislead" his family and everone -- he simply lied
Lewinsky informed Tripp that Clinton favored oral sex – that such an act did not constituted adultery. Ms. Lewinsky said in her grand jury testimony that she performed oral sex on Mr. Clinton.
Clinton denied he commited adultery. In his legal defenses, the President tried to distinguish between ''sexual relations'' and oral sex.
The definition of adultery is consensual sexual intercourse with a partner that is not your husband or wife.
Adultery is the voluntary sexual intercourse between a married person and another person who is not his or her spouse. Adultery is also referred to as extramarital sex, philandary or infidelity but does not include fornication. Fornication, or simple fornication, is a term which refers to voluntary sexual intercourse between persons not married to each other. The term "adultery" for many people carries a moral or religious association, while the term "extramarital sex" is morally or judgmentally neutral. (Wikipedia)
In the law of Divorce, adultery is voluntary sexual intercourse with another, one or both of them being married . The intercourse must involve some penetration but need not be complete.
The Old Testament says , that committeth adultery with another man's wife." So adultery meant sexual intercourse between a man and a married woman not his wife. Leviticus 20:10
Go back 2 spaces to why fornication is not adultery.. ?
Nevertheless, Oral sex, for example, would be a violation of your covenant promise ……….. adultery?
In conclusion, remember Clinton’s infamous "I didn't inhale" in respect of when he seen smoking marijuana in his student days at England.
Lets not go that direction.
Wednesday, August 27, 2008
Monday, August 11, 2008
Contumelious Delay
It is trite law that in application to strike out for want of prosecution, Birkett v James [1978] AC 297 at 318 F-G, Lord Diplock said, that the power should be exercised sparingly, that is where the court was satisfied either that “the default has been intentional and contumelious”, or that the delay was “inordinate and inexcusable” and had given rise to “a substantial risk that it is not possible to have a fair trial”.
Recaptulating:-
default has been intentional and contumelious; or
the delay was “inordinate and inexcusable”, therefore
a substantial risk that it is not possible to have a fair trial
An appellant court will seldom interfere with the dicretion of the judge in 1st instant unless the judge took into account the irrelevant factors, failed to take into account relevant factors, or has reached the conclusion that no reasonable judge could have reached, that his decision can be interfered with on appeal - see per Lord Diplock in Birkett at 317 E-G.
In Department of Transport v Chris Smaller Limited [1989] 1 WLR 1197 at 1120C, Lord Griffiths said that the Judicial Committee of the House of Lords “will only re-examine” a decision not to strike out for want of prosecution upheld by the Court of Appeal “in exceptional circumstances”
That is, it is not the function of an appellate court to carry out its own balancing exercise.
Application – 2 case studies
Lyons J, in Privy Council Appeal No 43 of 2006, Conticorp S.A. & 3 Ors v The Central Bank of Ecuador & 3 Ors, an appeal from the Bahamas, carefully described the history of these proceedings and directed himself in accordance with the principles laid down in Birkett. He then concluded that the delay of some six and a half years between the issue of proceedings and the taking out of the appellant’s summons to strike out was not “contumelious”, and, while he considered that it was “arguable” that the delay was “inordinate”, he did not consider that it was “inexcusable”. If the delay was inexcusable, he was doubtful whether it had given rise to a substantial risk that there could not be a fair trial. Although the Court of Appeal appear to have thought that their reasons for dismissing the appeal on this ground were different from those of the Judge, their grounds were very similar. They considered that there had been “undue delay in bringing the action to trial”, but that, once one apportioned the blame for this delay between the plaintiffs and the defendants, the delay for which the plaintiffs were responsible was insufficiently great to be characterised as “inordinate and inexcusable”, and in any event, the defendants had failed to establish that any delay that had occurred had resulted in any unfair prejudice to them.
In Malaysia, Chin Vui Khet v Progressive Insurance Bhd , Ian Chin J stated that
Recaptulating:-
default has been intentional and contumelious; or
the delay was “inordinate and inexcusable”, therefore
a substantial risk that it is not possible to have a fair trial
An appellant court will seldom interfere with the dicretion of the judge in 1st instant unless the judge took into account the irrelevant factors, failed to take into account relevant factors, or has reached the conclusion that no reasonable judge could have reached, that his decision can be interfered with on appeal - see per Lord Diplock in Birkett at 317 E-G.
In Department of Transport v Chris Smaller Limited [1989] 1 WLR 1197 at 1120C, Lord Griffiths said that the Judicial Committee of the House of Lords “will only re-examine” a decision not to strike out for want of prosecution upheld by the Court of Appeal “in exceptional circumstances”
That is, it is not the function of an appellate court to carry out its own balancing exercise.
Application – 2 case studies
Lyons J, in Privy Council Appeal No 43 of 2006, Conticorp S.A. & 3 Ors v The Central Bank of Ecuador & 3 Ors, an appeal from the Bahamas, carefully described the history of these proceedings and directed himself in accordance with the principles laid down in Birkett. He then concluded that the delay of some six and a half years between the issue of proceedings and the taking out of the appellant’s summons to strike out was not “contumelious”, and, while he considered that it was “arguable” that the delay was “inordinate”, he did not consider that it was “inexcusable”. If the delay was inexcusable, he was doubtful whether it had given rise to a substantial risk that there could not be a fair trial. Although the Court of Appeal appear to have thought that their reasons for dismissing the appeal on this ground were different from those of the Judge, their grounds were very similar. They considered that there had been “undue delay in bringing the action to trial”, but that, once one apportioned the blame for this delay between the plaintiffs and the defendants, the delay for which the plaintiffs were responsible was insufficiently great to be characterised as “inordinate and inexcusable”, and in any event, the defendants had failed to establish that any delay that had occurred had resulted in any unfair prejudice to them.
In Malaysia, Chin Vui Khet v Progressive Insurance Bhd , Ian Chin J stated that
“A case will only be struck out if the court is satisfied that not only that there had been inordinate and inexcusable delay but also that the delay has given rise to a substantial risk that a fair trial is not possible. In the present case there is no question of any intentional or contumelious conduct since there was no disobedience to any peremptory order. Since establishing prejudice is necessary before the application can succeed if remains to be examined what prejudice the Defendants could possibly have suffered. Generally, the Defendants alluded to their inability to trace the other Defendant against whom judgment was already obtained for the purpose of getting him to testify for the Defendants and that a lot of the events have to be recalled from memory which is not possible due to the long passage of time. But we are dealing, as a result of the defence raised, with a matter of the construction of an indemnity to determine whether it is uncertain as alleged by the Defendants. For the purpose, the instrument will be looked at and that is not dependent on any oral recollection and such will not play any part. It is the same with the issue of consideration which again is not dependent on any recollection from memory. So too, the question of whether the Plaintiff had already recovered certain sum which should go towards diminution of the Plaintiff’s claim. Therefore there is no substance in the Defendants’ contention that they have been prejudiced. In so far as the matter hanging over the head, it does not really matter since they are not professionals whose reputation will be at stake. In this regard the magistrate was correct in her view that this case depended much on documents and she was correct in exercising her discretion not to strike out the claim”
Tuesday, August 5, 2008
Justice Delayed Justice Denied - An Analysis of Abuse in Civil Litigation
This shall be a series of articles on abuse - protracted litigation.
The (2nd) million dollar question (the 1st one being costs) for a litigant to ask his Counsel (the 1st being Costs - refer to blog), "..... so .. how long is all this going to take?"
It is an answer which many lawyers have not only "put their foot in" but have had it teased, chewed and to devour with ketchup. The client waited with bated breath only to receive himalayan blunders.
This question is signicant not only to the litigant but to the entire judicial mechanism, from the chief justice to the fumbling advocate.
This premiliminary acticle would serve as an introduction.
1. Abuse by Judge
2. Abuse by Counsel
3. Practice & Procedural Inadequcies
Before I embark on this task, I which to highlight an excellent speech of the Indian President A.P.J. Abdul Kalam. He commented:-
“honest implementations are not impeded by unsustainable or motivated litigations or honest persons vilified through public glare based on such filings,”
He added, human rights were being violated, there was a lack transparency and almost 3% of the population was affected by the prolonged litigation (2005)
The cause he said, and I strongly believe this to be a start..
1. Inadequate number of courts and judical officers,
2. Officers not equipped to tackle cases involving specialised knowledge,
3. Dilatory tactics by litigants and their lawyers
4. COurt Administrative staff - the role played (or lack of it)
Philosophically he concluded “a human touch at the grassroots level ..will reduce the load in our courts.”
Are we doing anything about this?
The New Straits Times reported on Friday August 6, 2004 that the then CJ was out to clear backlog of cases Shophouses were to be used as courts if necessary. Whereas the CJ was emphasising on criminal cases, this is what he had to say. The courts were employing extensive use of witness statements in trials. Civil court judges would be used for criminal cases as althought we can justify the need for the increase (in judges), but the number of judges that we get will depend on the national budget. Yeo Yang Poh, the Bar Council’s vice-president commented “We have seen a real effort in the clearing up of cases. The Chief Justice and the judiciary are doing their best. We should work together to reduce the backlog.”
Sometimes, less said the better.
It is imparetive that we, the government, the judicial system and the public do something about this NOW, ... or we have only ourselves to blame if we let grass grow around our feet. Justice Delayed Justice Denied
Monday, August 4, 2008
Abandoned Projects (2) tips
It is prudent when faced with an (potential) abandoned project that various precautionary measures be adopted.
One of the first things to go are the wiring, which are commonly ripped out from the walls. Therefore, one has no idea if there is wiring from point A to point B. The copper value is usually the primary reason for the vandals to do so.
Secondly, unpaid suppliers will usually sabotage the pipes etc. This may require very expensive and troublesome rectification as it would involve removing and destroying perfectly good fittings.
Thirdly, do be concerned about surreptitious "illegal" use of various sections of the project whilst the other parts are being "rectified".
Lastly, it is always strange but premises that all left long without use and unattended develop its own problems like leaking, stains, marks etc.
Sunday, August 3, 2008
Trial by Internet – Sub judice
Trial by Internet – Sub judice
Are peoples using the internet to have a go on "their" issue.
Trial by Media and even more rampant, by the internet, would have no holds barred and what is put up on the internet and public domain cannot be restrained that easily.
Examples, of lynching on the net
The case of a woman who was thrown to a Korean cyber lynch mob for failing to clean up the mess her dog had left behind has put the international spotlight on the country’s sometimes vicious online community.
"Subway Fracas Escalates into Test of the Internet's Power to Shame,” the Washington Post headlined a story on the "Dog Poop Girl" on Thursday. The paper said the incident revealed the power of the Internet and provided "a peek into an unsettling corner of the future" of the cyberworld, in turn sparking debate among experts and bloggers in the U.S.
What about using the net to deliver a verdict
When his mother’s inheritance was apparently stolen by his belated stepfather’s best friend, author Ian Coburn was shocked to learn from authorities that such incidents occur frequently. It’s a crisis that flies under the radar.
In an effort to immediately warn the public of this epidemic, Ian created a website on April 1st, sharing the full story of the loss of his mother’s inheritance. In an added twist, the site invites viewers to vote on the perpetrator’s guilt or innocence after reviewing posted documented evidence. Could this be a new wave? Trial by Internet? Currently, 130 votes have been cast.
The site is www.saveinheritance.com. Visitors to the site are encouraged to use it to segue way into a discussion of the arrangements for their demise, as well as their parents’ and grandparents’, where applicable.
http://www.prlog.org/10066761-trial-by-internet-mother-inheritance-stolen-by-best-friend.html
Sub judice .........
Chinese Internet authorities have ordered websites—including a Chinese language environmental NGO site operated by China Development Brief (www.greengo.cn)—to remove an open letter from twelve organisations calling for a fair trial for jailed environmental activist, Wu Lihong
However, in April of this year Wu was arrested by local authorities in his home city of Yixing and has since been charged with blackmail. Prosecutors claim he “extorted 55,000 yuan from enterprises by threatening to expose how they were polluting the environment,” according to Xinhua.
On June 11 The China Daily reported that “China has sacked or otherwise punished five officials [from Yixing] for dereliction of duty” in connection with the lake’s pollution, and also referred to Wu’s arrest on “a charge some say was trumped up by vengeful officials.”
The now-suppressed open letter from environmental NGOs did not allege that the charge was “trumped-up.” Rather, it urged that “all the evidence should be examined carefully, the verdict should be reached independently by the court . . . and the court should not accept any evidence that was not lawfully obtained.”
First circulated on June 5, World Environment Day, the letter also called for the trial to be open to the public and the press, arguing that otherwise “the public will be led to conclude that the judicial process is being used to take revenge to a higher level
http://www.chinadevelopmentbrief.com/node/1157
In this respect, look at this open threads.
http://www.haloscan.com/comments/truecrimeweblog/5679895540739036095/
http://news.scotsman.com/ViewArticle.aspx?articleid=3308814
Are peoples using the internet to have a go on "their" issue.
Trial by Media and even more rampant, by the internet, would have no holds barred and what is put up on the internet and public domain cannot be restrained that easily.
Examples, of lynching on the net
The case of a woman who was thrown to a Korean cyber lynch mob for failing to clean up the mess her dog had left behind has put the international spotlight on the country’s sometimes vicious online community.
"Subway Fracas Escalates into Test of the Internet's Power to Shame,” the Washington Post headlined a story on the "Dog Poop Girl" on Thursday. The paper said the incident revealed the power of the Internet and provided "a peek into an unsettling corner of the future" of the cyberworld, in turn sparking debate among experts and bloggers in the U.S.
http://english.chosun.com/w21data/html/news/200507/200507080017.html
What about using the net to deliver a verdict
When his mother’s inheritance was apparently stolen by his belated stepfather’s best friend, author Ian Coburn was shocked to learn from authorities that such incidents occur frequently. It’s a crisis that flies under the radar.
In an effort to immediately warn the public of this epidemic, Ian created a website on April 1st, sharing the full story of the loss of his mother’s inheritance. In an added twist, the site invites viewers to vote on the perpetrator’s guilt or innocence after reviewing posted documented evidence. Could this be a new wave? Trial by Internet? Currently, 130 votes have been cast.
The site is www.saveinheritance.com. Visitors to the site are encouraged to use it to segue way into a discussion of the arrangements for their demise, as well as their parents’ and grandparents’, where applicable.
http://www.prlog.org/10066761-trial-by-internet-mother-inheritance-stolen-by-best-friend.html
Sub judice .........
Chinese Internet authorities have ordered websites—including a Chinese language environmental NGO site operated by China Development Brief (www.greengo.cn)—to remove an open letter from twelve organisations calling for a fair trial for jailed environmental activist, Wu Lihong
However, in April of this year Wu was arrested by local authorities in his home city of Yixing and has since been charged with blackmail. Prosecutors claim he “extorted 55,000 yuan from enterprises by threatening to expose how they were polluting the environment,” according to Xinhua.
On June 11 The China Daily reported that “China has sacked or otherwise punished five officials [from Yixing] for dereliction of duty” in connection with the lake’s pollution, and also referred to Wu’s arrest on “a charge some say was trumped up by vengeful officials.”
The now-suppressed open letter from environmental NGOs did not allege that the charge was “trumped-up.” Rather, it urged that “all the evidence should be examined carefully, the verdict should be reached independently by the court . . . and the court should not accept any evidence that was not lawfully obtained.”
First circulated on June 5, World Environment Day, the letter also called for the trial to be open to the public and the press, arguing that otherwise “the public will be led to conclude that the judicial process is being used to take revenge to a higher level
http://www.chinadevelopmentbrief.com/node/1157
In this respect, look at this open threads.
http://www.haloscan.com/comments/truecrimeweblog/5679895540739036095/
http://news.scotsman.com/ViewArticle.aspx?articleid=3308814
Friday, August 1, 2008
Sub judice & Trial By Media
Sub Judice - The matter is before a judge or court of law awaiting judicial determination
In the Common Law Jurisdictions, it is practice not to comment on cases pending in Court, sub judice. Comments and Reports (“Reporting”) must be distiguished in this respect. The rational is the this would tantamount to “usurpation” of the Court/Judge’s disposition on the same. It also may constitute interference with due process.
Due process, fundamental fairness, places restrains/safe guards on the Executive and Judiciary when a person’s rights and liberty is brought into question. The Doctrine can trace back to the Magna Carta "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." and is also enshrined in the Fifth and Fourteenth Amendment in the Common Law and American Jurisductions respectively. Invietable all this shall lead to natural justice, the Rule of Law and Seperation of Powers.
A subjudice comment can be punished by contempt of court proceedings. This is particularly so a criminal cases, where publicly discussing cases sub judice.
In the American Jurisdictions such right to comment is said to fetter the right of free speech. Nevertheless the rule on professional ethics restricts any out-of-court statements on an ongoing case. This would seem to apply only in respect of “attorneys”.
The 1st Amendments
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
What about “trial by media”?
A judge may feel curtailed if “commentaries” (on a case which he is sitting) lead up to “opinions” and “opinions” further lead up to “conclusions” which the Judge, even more importantly the Jury and/or the Public may have taken on an issue/made a decision. The Law on the matter will then take 2nd seat as to what is public opinion.
For example in the case of the famous tv presenter, Ulrika Jonsson, the media actually named the “accused”, and thereafter the media took it on the road (with investigations and commentaries).
The controversy over the naming of a celebrity who allegedly raped television presenter Ulrika Jonsson has become one of those stories where the accusation of "trial by media" has again surfaced. The conduct of the media in such cases has been in the spotlight since the killing of Soham school girls Holly Wells and Jessica Chapman earlier this year. As soon as arrests were made, a host of newspapers investigated the backgrounds of Ian Huntley and Maxine Carr, the pair eventually charged in connection with the deaths. The frenzy was such that the Attorney General eventually warned of the dangers of prejudicing a trial.
Media ethics campaigners Presswise see similar "trial by media" similarities between the Soham case and the current reporting of the Ulrika man.
On Wednesday, the man's name became public when Channel 5's The Wright Stuff inadvertently named the man.
The London Evening Standard's executives debated with their lawyers what they could report and decided to follow up.
"The attitude seemed to be the Standard didn't have much to lose because Channel 5 had already named him," said an insider.
"If they didn't go with it now, they knew all the morning papers would."
So the newspaper splashed the man's name and picture on its front page, emphasising that he had been named by Channel 5.
Thursday morning saw all the tabloids plus one broadsheet run the story, some detailing allegations from other women.
Sky News, followed by ITN, brought his name to television viewers. But it doesn't end there.
At least one spoof picture of the accused man is doing the office e-mail circuit, the content of the message bitingly describing his downfall.
Furthermore, the Channel 4 celebrity chatshow, V Graham Norton, briefly displayed a picture of the man without mentioning the case. It provoked ironic boos from the audience.
Legal quagmire
Tom Welsh, editor of Media Lawyer and co-editor of the legal textbook found in every newsroom, said trial by media involved two separate issues - defamation and prejudice of juries.
"If you say someone committed rape you have to prove it," said Mr Welsh.
"If you say someone is accused of rape and is being investigated, that will convey the defamatory meaning that he is under suspicion and there are reasonable grounds for suspicion."
But Mr Welsh said that the critical factor is whether or not the media had covered their backs by getting an official statement from the police saying someone is under investigation. This had not happened in the Ulrika case.
"I think the newspapers are on very dodgy ground here," he warned.
But he added fears of influencing juries are not necessarily well founded.
Senior judges and law lords say the risk of prejudicing a jury is related to how much time passes between a newspaper's allegations and a date of a trial.
"The assumption is that juries will be swayed by what they read in The Sun," said Mr Welsh.
"But judges tend to take a different view that we underestimate juries."
Campaigners say that this isn't good enough.
"If we look at the man in the Ulrika case, this will leave his career in ruins, whether or not he is guilty.
"I have to question the motives of the newspapers in these cases," said Mr Norris.
"Are they genuinely trying to bring people to justice or trying to increase circulation?"
http://news.bbc.co.uk/2/hi/uk_news/2361089.stm
Trial by media took a further turn when conversely the Jury was instead fed with the interviews and press statements for their deciding processin the Soham murder trial
During the 10 days the girls were missing, Huntley and Carr made numerous appearances on television and in print.
They were interviews which were eventually to hold a courtroom spellbound by their coolness and audacity.
And the journalists who conducted them found their encounters with the pair had become crucial evidence.
Over the course of the trial, the jury watched first Huntley and then his former girlfriend describe their fears for the girls and the hopes of the local community that they would be found safe and well.
Lisa Mitchell
http://news.bbc.co.uk/2/hi/uk_news/3295123.stm
A further interesting read,
Trial By Media -- Do's and Don'ts.
Jonathan Bernstein, Saturday, 12th April 2003
1. DON’T make the media your primary means of communicating on pending or current litigation in progress. Journalists are not a reliable means of ensuring that your key audiences receive your messages, nor is it a reporter’s job to make sure everything you think is important gets to the right people.
2. DO communicate directly with your important audiences, internally and externally, to ensure they have the information you want them to have about matters being tried in the media.
3. DO consider the option of informing certain key audiences of the probability of media coverage on a legal matter before it appears in the press.
4. DO remember that employees are a critical audience -- all employees are PR representatives for the organization whether you want them to be or not.
5. DO integrate legal and PR strategy, because you’ll be educating the jury pool while also minimizing damage that could occur to your organization in the short-term, even if you win the legal case in the long-term.
6. DO explore the use of publicity about generic or related issues relevant to your particular case or client as a legitimate means of bringing attention to issues that might result in pre-trial settlements, or to develop similar examples to illustrate the issues in your case.
7. DON’T say "no comment" if you haven’t had a chance to review the case. Say "I’d very much like to comment on this as soon as I’ve read what’s been filed." If appropriate, add: "I still don’t have a copy of it myself, could you fax or email one over?"
8. DO tell journalists that you want to respect their deadlines, but would appreciate their respecting your need to have the information you need to make an intelligent response.
9. DON’T attack the media. Ever. Neither directly, nor in communication with other audiences, because it will get back to them. The media can hurt you more than you can hurt them. Most media outlets LOVE being sued or threatened, it sells more papers or air time.
10. DON’T judge the impact of media coverage by the sensationalism of headlines or length of news coverage. Ask your important audiences, internal and external, how THEY are reacting to the coverage -- in some cases, you’ll find they don’t believe it!
11. DO consider becoming your own publisher, using the Internet to post your perspective on issues of public concern -- IF the general public is, in fact, an important audience for you. Or even on a password-protected Web site for selected audiences that are important to you.
12. DON’T assume that you know how to talk to reporters about negative news just because you’re skilled at "good news" interviews -- get media trained.
13. DO establish both internal and external rumor control systems to short-circuit rumors early on, before they do too much damage.
http://www.4hoteliers.com/4hots_fshw.php?mwi=63
In the Common Law Jurisdictions, it is practice not to comment on cases pending in Court, sub judice. Comments and Reports (“Reporting”) must be distiguished in this respect. The rational is the this would tantamount to “usurpation” of the Court/Judge’s disposition on the same. It also may constitute interference with due process.
Due process, fundamental fairness, places restrains/safe guards on the Executive and Judiciary when a person’s rights and liberty is brought into question. The Doctrine can trace back to the Magna Carta "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." and is also enshrined in the Fifth and Fourteenth Amendment in the Common Law and American Jurisductions respectively. Invietable all this shall lead to natural justice, the Rule of Law and Seperation of Powers.
A subjudice comment can be punished by contempt of court proceedings. This is particularly so a criminal cases, where publicly discussing cases sub judice.
In the American Jurisdictions such right to comment is said to fetter the right of free speech. Nevertheless the rule on professional ethics restricts any out-of-court statements on an ongoing case. This would seem to apply only in respect of “attorneys”.
The 1st Amendments
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
What about “trial by media”?
A judge may feel curtailed if “commentaries” (on a case which he is sitting) lead up to “opinions” and “opinions” further lead up to “conclusions” which the Judge, even more importantly the Jury and/or the Public may have taken on an issue/made a decision. The Law on the matter will then take 2nd seat as to what is public opinion.
For example in the case of the famous tv presenter, Ulrika Jonsson, the media actually named the “accused”, and thereafter the media took it on the road (with investigations and commentaries).
The controversy over the naming of a celebrity who allegedly raped television presenter Ulrika Jonsson has become one of those stories where the accusation of "trial by media" has again surfaced. The conduct of the media in such cases has been in the spotlight since the killing of Soham school girls Holly Wells and Jessica Chapman earlier this year. As soon as arrests were made, a host of newspapers investigated the backgrounds of Ian Huntley and Maxine Carr, the pair eventually charged in connection with the deaths. The frenzy was such that the Attorney General eventually warned of the dangers of prejudicing a trial.
Media ethics campaigners Presswise see similar "trial by media" similarities between the Soham case and the current reporting of the Ulrika man.
On Wednesday, the man's name became public when Channel 5's The Wright Stuff inadvertently named the man.
The London Evening Standard's executives debated with their lawyers what they could report and decided to follow up.
"The attitude seemed to be the Standard didn't have much to lose because Channel 5 had already named him," said an insider.
"If they didn't go with it now, they knew all the morning papers would."
So the newspaper splashed the man's name and picture on its front page, emphasising that he had been named by Channel 5.
Thursday morning saw all the tabloids plus one broadsheet run the story, some detailing allegations from other women.
Sky News, followed by ITN, brought his name to television viewers. But it doesn't end there.
At least one spoof picture of the accused man is doing the office e-mail circuit, the content of the message bitingly describing his downfall.
Furthermore, the Channel 4 celebrity chatshow, V Graham Norton, briefly displayed a picture of the man without mentioning the case. It provoked ironic boos from the audience.
Legal quagmire
Tom Welsh, editor of Media Lawyer and co-editor of the legal textbook found in every newsroom, said trial by media involved two separate issues - defamation and prejudice of juries.
"If you say someone committed rape you have to prove it," said Mr Welsh.
"If you say someone is accused of rape and is being investigated, that will convey the defamatory meaning that he is under suspicion and there are reasonable grounds for suspicion."
But Mr Welsh said that the critical factor is whether or not the media had covered their backs by getting an official statement from the police saying someone is under investigation. This had not happened in the Ulrika case.
"I think the newspapers are on very dodgy ground here," he warned.
But he added fears of influencing juries are not necessarily well founded.
Senior judges and law lords say the risk of prejudicing a jury is related to how much time passes between a newspaper's allegations and a date of a trial.
"The assumption is that juries will be swayed by what they read in The Sun," said Mr Welsh.
"But judges tend to take a different view that we underestimate juries."
Campaigners say that this isn't good enough.
"If we look at the man in the Ulrika case, this will leave his career in ruins, whether or not he is guilty.
"I have to question the motives of the newspapers in these cases," said Mr Norris.
"Are they genuinely trying to bring people to justice or trying to increase circulation?"
http://news.bbc.co.uk/2/hi/uk_news/2361089.stm
Trial by media took a further turn when conversely the Jury was instead fed with the interviews and press statements for their deciding processin the Soham murder trial
During the 10 days the girls were missing, Huntley and Carr made numerous appearances on television and in print.
They were interviews which were eventually to hold a courtroom spellbound by their coolness and audacity.
And the journalists who conducted them found their encounters with the pair had become crucial evidence.
Over the course of the trial, the jury watched first Huntley and then his former girlfriend describe their fears for the girls and the hopes of the local community that they would be found safe and well.
Lisa Mitchell
http://news.bbc.co.uk/2/hi/uk_news/3295123.stm
A further interesting read,
Trial By Media -- Do's and Don'ts.
Jonathan Bernstein, Saturday, 12th April 2003
1. DON’T make the media your primary means of communicating on pending or current litigation in progress. Journalists are not a reliable means of ensuring that your key audiences receive your messages, nor is it a reporter’s job to make sure everything you think is important gets to the right people.
2. DO communicate directly with your important audiences, internally and externally, to ensure they have the information you want them to have about matters being tried in the media.
3. DO consider the option of informing certain key audiences of the probability of media coverage on a legal matter before it appears in the press.
4. DO remember that employees are a critical audience -- all employees are PR representatives for the organization whether you want them to be or not.
5. DO integrate legal and PR strategy, because you’ll be educating the jury pool while also minimizing damage that could occur to your organization in the short-term, even if you win the legal case in the long-term.
6. DO explore the use of publicity about generic or related issues relevant to your particular case or client as a legitimate means of bringing attention to issues that might result in pre-trial settlements, or to develop similar examples to illustrate the issues in your case.
7. DON’T say "no comment" if you haven’t had a chance to review the case. Say "I’d very much like to comment on this as soon as I’ve read what’s been filed." If appropriate, add: "I still don’t have a copy of it myself, could you fax or email one over?"
8. DO tell journalists that you want to respect their deadlines, but would appreciate their respecting your need to have the information you need to make an intelligent response.
9. DON’T attack the media. Ever. Neither directly, nor in communication with other audiences, because it will get back to them. The media can hurt you more than you can hurt them. Most media outlets LOVE being sued or threatened, it sells more papers or air time.
10. DON’T judge the impact of media coverage by the sensationalism of headlines or length of news coverage. Ask your important audiences, internal and external, how THEY are reacting to the coverage -- in some cases, you’ll find they don’t believe it!
11. DO consider becoming your own publisher, using the Internet to post your perspective on issues of public concern -- IF the general public is, in fact, an important audience for you. Or even on a password-protected Web site for selected audiences that are important to you.
12. DON’T assume that you know how to talk to reporters about negative news just because you’re skilled at "good news" interviews -- get media trained.
13. DO establish both internal and external rumor control systems to short-circuit rumors early on, before they do too much damage.
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