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
