Prejudicial publicity: two seductive fallacies

From the BBC News website today, an interesting report of arguments presented in the Luke Mitchell appeal. Here, in a nutshell, is the issue as the BBC have summarised it:

“His defence lawyers insist the intense media coverage may have influenced jurors at his trial in Edinburgh.”

“But appeal judges were told that the coverage was 'self inflicted'.”

Both these arguments are superficially attractive, but to accept them would be to accept two fallacies. It is almost inevitable that the summary, although I have no reason to doubt its fairness, does not do justice to the arguments that have been presented in court. Because of that, what follows is not meant to be a criticism of the counsel concerned, who will have presented far more detailed and nuanced arguments than could possibly be represented in a two line summary. The news report, however, does provide an opportunity to explore the two fallacies, which have proved dangerously attractive to courts in the past. (Much of this is based on arguments made in Chalmers and Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 18.19 and 18.22.)

(a) “Intense” does not equal “prejudicial”

The idea that “intense” media coverage is prejudicial is superficially attractive, but many shocking cases receive “intense” coverage. Surely they cannot be incapable of being tried? This clearly worried Lord Taylor CJ in the Rosemary West case, where he rejected an argument based on prejudicial publicity by saying:

“[the] question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as to inevitably shock the nation, the accused cannot be tried. That would be absurd.” (R v West (Rosemary) [1996] 2 Cr App R 374, at 386)

But that is to miss the point. If X is to stand trial for a shocking series of murders, it surely cannot be “prejudicial” to say that X is suspected or accused of a shocking series of murders, no matter how “intensively” and repeatedly that statement is made. After all, provided such statements are accurate, they do no more in effect than give publicity to the indictment, itself a public document setting out the allegations which will be laid before the jury at the outset of a trial.

It would be prejudicial to say, for example, that X is suspected of other murders which are not the subject of the trial; or that X has committed other murders or other crimes; or that there are particular reasons – especially if these relate to matters which cannot be the subject of evidence in court – to believe that the allegations are true.

In other words, what matters first is not the intensity of the coverage, but its content. It is surely only if the content is prejudicial that the question of intensity becomes relevant. The problem Lord Taylor identified in R v West is illusory.

(b) Self-infliction: should we care?

The Crown appear to have argued that Mitchell’s defence team were responsible for fanning the flames of press coverage. That may be right, and there is some support in the case law for the argument that where an accused does this he can hardly complain of the consequences (see R v Savundranayagan and Walker [1968] 1 WLR 1761).

But, when properly considered, the answer to the Crown’s argument should now be “so what?” The point of an appeal based upon prejudicial publicity must be that an accused’s right to a fair trial – both at common law and under article 6(1) of the European Convention on Human Rights – has been violated (Montgomery v HM Advocate 2001 SC (PC) 1). The right to a fair trial can be waived, but waiver must be “voluntary, informed and unequivocal” (Millar v Dickson [2001] UKPC D4, at para 38 per Lord Bingham of Cornhill).

No doubt “self-inflicted” publicity could meet that test – for example, if an accused deliberately sought to frustrate his trial by engineering a prejudicial newspaper article with details of his previous convictions on the eve of trial. But outside extreme circumstances such as that, the idea that “self-inflicted” press coverage goes so far as to be a “voluntary, informed and unequivocal” waiver of the right to a fair trial must be near-impossible to sustain.