Reforming publication contempt
4.1Publishing material that interferes in some way with the administration of justice may be a contempt of court. This chapter deals mainly with the publication contempt of interfering with the right to a fair trial. While this is only one form of publication contempt, it is by far the most important and also the most topical at present. The new media environment in which almost anyone can publish material on the Internet or post material using social media poses a whole range of new challenges for this form of contempt.
4.2In this chapter, we also deal briefly with the related publication contempt of “prejudging” the case or “trial by media”. The contempt of scandalising the court (which is also a form of publication contempt) is considered separately in Chapter 6.
Publication of prejudicial material
4.3Two public interests clash in this area of contempt: the public interest in freedom of expression and the public interest in preserving the right to a fair trial. Both are indispensable rights in a free and democratic society and both are guaranteed by the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).
4.4The power of the courts to control information both in the lead-up to and during a criminal trial is considered fundamental to the integrity of the trial process. Judges have both statutory and inherent powers to determine what information can be disclosed publicly and at what point before and during a trial. They also have jurisdiction to punish those who disregard these prohibitions. The courts have inherent power to protect “the fair trial rights of an accused” from the point when the laying of charges is “highly likely”. From that point onwards, a case is described as “sub judice” or literally “[b]efore the court or judge for determination”.
4.5Throughout the protected fair trial period, which, in New Zealand, typically lasts more than a year, the law of contempt (including pre-emptive injunctions) together with suppression powers seeks to:
- prevent the general public, from whom the jury pool will eventually be drawn, from being exposed to information that is prejudicial and may make it difficult for jurors to approach the trial with open minds;
- ensure the court’s authority to determine what evidence will be admitted at trial is not pre-empted by the media; and
- preserve the integrity of evidence including, for example, the reliability of witness statements about matters such as identity.
4.6For the generation who have grown up with the Internet and mobile communication technologies, the idea that the flow of information and opinions can or should be stemmed even temporarily may well seem counter-intuitive. However, the integrity of our justice system and the citizen’s right to a fair trial remain fundamental to our conception of a free and democratic society. The fact that the law is struggling to uphold these principles in the age of the Internet cannot be determinative of the substance of our laws. That said, the law is not static. It is a reflection of our society’s fundamental values and culture, and there can be no doubt that the current information revolution is having a profound impact on both.
4.7In this chapter, we examine the law relating to publication contempt and consider particularly what new communication technology means for the future of this form of contempt. In approaching this question, we have assumed that the jury trial will remain central to the adversarial criminal justice system and that the courts will therefore continue to need to control what information is publicly disclosed before a trial is concluded.