PRE-TRIAL PUBLICITY: FREE SPEECH VERSUS FAIR TRIAL BY SHAWN MARVIN FLOWERS STUDENT NUMBER: 9304128 PRESENTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE MAGISTER LEGUM IN THE FACULTY OF LAW, UNIVERSITY OF THE WESTERN CAPE, SOUTH AFRICA PREPARED UNDER THE SUPERVISION OF PROF RAYMOND KOEN June 2017 TABLE OF CONTENTS Declaration v Abstract vi Acknowledgments vii Keywords viii Acronyms and Abbreviations ix CHAPTER ONE: RESEARCH FRAMEWORK 1.1 Introduction 1 1.2 Problem Statement 3 1.3 Research Question 4 1.4 Literature Review 5 1.5 Outline Of Chapters 5 CHAPTER TWO: FREEDOM OF EXPRESSION 2.1 Introduction 7 2.2 South African Law 7 2.3 International Law 10 2.3.1 Madrid Principles 10 2.3.2 Summation 12 2.4 Rationale of Freedom of Expression 13 2.4.1 Freedom of Expression and Democracy 14 2.4.2 Truth and the Marketplace of Ideas 16 2.4.3 Self-fulfilment and Audience Autonomy 17 2.5 Rights and Obligations of the Media 17 2.6 Trial by Media 19 2.7 Trial by Media and Industrial Journalism 22 2.8 Conclusion 24 CHAPTER THREE: RIGHT TO A FAIR TRIAL 3.1 Introduction 26 3.2 South African Law 26 3.3 International Law 32 http://etd.uwc.ac.za 3.4 South African Law versus International Law 36 3.5 The Purpose of the Right to a Fair Trial 38 3.6 The Nature of the Right to a Fair Trial 41 3.7 Presumption of Innocence 45 3.8 Right to a Public Trial 50 3.9 Right to a Trial before an Impartial and Independent Court 56 3.10 Conclusion 62 CHAPTER FOUR: STAY OF CRIMINAL PROCEEDINGS 4.1 Introduction 64 4.2 South African Law 64 4.3 Foreign Law 68 4.4 The Cases of Brown and Banana 70 4.5 Conclusion 74 CHAPTER FIVE: PRIOR RESTRAINT AND THE SUB JUDICE RULE 5.1 Introduction 76 5.2 Prior Restraint 77 5.3 The Sub Judice Rule 83 5.4 Conclusion 87 CHAPTER SIX: CONCLUSION 6.1 Closing Remarks 89 6.2 Recommendations 90 BIBLIOGRAPHY 93 http://etd.uwc.ac.za DECLARATION I, Shawn Marvin Flowers, declare that Pre-trial Publicity: Free Speech versus Fair Trial is my own work and that it has not been submitted before for any degree or examination in any other university, and that all sources I have used or quoted have been indicated and acknowledged as complete references. Signed: Shawn Marvin Flowers Signed: Prof Raymond Koen v http://etd.uwc.ac.za ABSTRACT News coverage of high profile criminal matters has increased in South Africa. Such matters are of public concern, as every citizen has a right to receive and impart information and to debate openly and frankly matters which are of public concern, including matters before the courts. The legitimacy of the courts is dependent on robust media reportage and public scrutiny of judicial matters which such reportage stimulates. However, criminal trials of high profile accused persons such as Oscar Pistorius, Shrien Dewani and J Arthur Brown, turn easily into a show with strong entertainment value, giving the media strong profitmaking reasons to cover it. In their pursuit of profit and in seeking to satisfy the curiosity of their readers, listeners or viewers, the media regularly resort to trial by media or adverse pre-trial publicity. Trial by media is nothing more than commercially motivated expression which does not warrant constitutional protection. At the receiving end of such coverage are accused persons. Public censure of crime and of accused persons which follows trial by media should not be imposed on the innocent. The right to a fair trial requires that an accused be treated fairly from the inception of the criminal process, from which point the person suspected of committing the crime in question is considered innocent. Any pre-trial process which implies that the accused is guilty, including any such process influenced by media reports surrounding criminal offences, violates the presumption of innocence. Despite the availability of remedies, the media in South Africa usually are not held to account for their actions and persist with adverse, biased and irresponsible pre-trial reporting. Courts have shown a tendency to protect the media in these cases, despite the effect of such reporting on the judicial process, the administration of justice and the fair trial rights of accused persons. The reason for this is usually the hesitation on the part of judges to recognise their susceptibility to extraneous matters. Judges should not be placed in a position where their independence and impartiality are questioned as a result of media sensationalism. Where the media create mistrust in the integrity of the judiciary, the rule of law is in peril. vi http://etd.uwc.ac.za ACKNOWLEDGMENTS I would like to express my sincere appreciation to Prof Raymond Koen for his continuous support and encouragement to complete my LLM study and research. I am especially grateful for his patience, motivation and the interest that he has shown in me over the past three years. His guidance assisted me greatly during the research and writing of this thesis. vii http://etd.uwc.ac.za KEYWORDS Adverse Pre-Trial Publicity Contempt of court ex facie curiae Freedom of Expression Impartiality Judicial Independence Prior Restraint Right to a Fair Trial Stay of Criminal Proceedings Sub Judice Rule Trial by Media viii http://etd.uwc.ac.za ACRONYMS AND ABBREVIATIONS ACHPR African Charter on Human and People’s Rights ACHR American Convention on Human Rights African Principles and Guidelines Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) Bangalore Principles Bangalore Principles of Judicial Conduct (2002) CC Constitutional Court ICCPR International Covenant on Civil and Political Rights Madrid Principles Madrid Principles on the Relationship between the Media and Judicial Independence (1994) NPA National Prosecuting Authority SCA Supreme Court of Appeal Siracusa Principles Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1984) UDHR Universal Declaration of Human Rights UN United Nations UN Basic Principles United Nations Basic Principles on the Independence of the Judiciary (1985) ix http://etd.uwc.ac.za CHAPTER ONE RESEARCH FRAMEWORK 1.1 Introduction The media coverage of the criminal trials of Oscar Pistorius, Shrien Dewani and J Arthur Brown illustrated well the role of the media in pre-trial reporting. The case of Oscar Pistorius, in particular, attracted enormous media attention from the outset and elicited public outrage, which included protest action at the court where he appeared. The facts and circumstances of the case, as well as the forensic investigations and Pistorius’s arrest, were covered extensively in both the electronic and print media prior to his bail application and subsequent trial. Such coverage included stories on Pistorius’s sporting achievements and sensationalised his participation in any social activities after the death of his girlfriend. Media reports tended to speak also to the character of Pistorius, reflecting on his supposed temper outbursts as perceived by friends. These reports affected Pistorius’s public image significantly and led to the publication of various views pertaining to his guilt prior to the actual trial. Further, the media were allowed complete coverage of the Pistorius trial as it unfolded in court. This was accompanied by twenty-four hour news programming, which covered discussions on evidence, strategy and opinions in all media forms on every trial day. This coverage spawned further views pertaining to his guilt during the trial. Pistorius was not given the benefit of being presumed innocent until proved guilty and this was due largely to the media attention given to his trial. John J Smyth QC, Director of the Justice Alliance of South Africa, felt it necessary to declare that: Trial by media is always an antithesis of the rule of law. It is difficult to escape the conclusion that the licence permitted to the media in the Pistorius case is hardly likely to encourage the English courts to extradite Dewani.1 1 Legalbrief Today (28 February 2013). 1 http://etd.uwc.ac.za The murder of Anni Dewani also attracted extensive media coverage. Murder accused, Shrien Dewani, opposed the extradition application brought by South African authorities. One of the grounds upon which he relied was that he would not receive a fair trial in South Africa. The extensive media coverage detailing Shrien Dewani’s alleged involvement contributed greatly to his opposing the extradition application. This led to lengthy court battles to have him extradited to and face trial in South Africa. The then Police Commissioner, General Bheki Cele, was quoted by the media at the time as saying: A monkey came all the way from London to have his wife murdered here. Shrien thought we, South Africans, were stupid when he came all the way to kill his wife in our country. He lied to himself.2 Cele had apportioned guilt to Dewani prior to any formal hearing of the matter. It was views such as these, reflected in the local and international media, which Dewani’s legal team cited as the pre-trial mentality which may influence the independence and objectivity of the judiciary and the fair trial rights of their client. Dewani eventually stood trial and was acquitted, which prompted public questioning of the objectivity of the presiding judge. The general public, influenced by the media coverage of the matter, already had convicted Dewani and expected the judge to do likewise. The corruption and fraud case of J Arthur Brown also enjoyed extensive media attention. The media launched scathing attacks on Brown during their pre-trial coverage of his case.