In Barbados bloggers and other social media users are being warned about what they publish online during the midst of an ongoing criminal trial. Any publication which contains prejudicial information may result in a contempt of court charge. In our article we examine the impact of social media on the right to a fair trial.
05/24/2022
By Attorneys-at-Law Anthony D. Francis-Worrell LLB (Hons) and Graeme A. J. Brathwaite LLB (Hons)
Introduction
As the popular Barbadian saying goes “Doan let yuh mout get ya in trouble”. This warning could not be more true, as recently in Barbados, a popular local blogger was excoriated and ordered by a Judge to remove her social media publications that contained likely prejudicial content related to an accused person in an ongoing criminal trial. Given the possibility that the information could have prejudiced the jurors and adversely affected the accused’s right toa fair trial, an investigation was ordered by the Judge. Following the investigation, it was discovered that two jurors saw the publications which resulted in their discharge from jury duty prior to the return of a verdict. It is understood that the popular local blogger may now face contempt of court charges for breach of the sub judice rule.
The Sub Judice Rule
The sub judice rule is used to protect a person’s right to a fair trial by preventing persons from publishing information that may improperly influence a jury or a witness in an ongoing matter.
Social media has transformed the way in which information is shared and received. Information is instantaneous and readily accessible. When used improperly, social media can have a devastating effect on the administration of justice and, severely impact the ability of an accused person to secure a fair trial. This is particularly the case where juries are involved.
The Jury
The jury system remains the cornerstone of criminal trials in Barbados as much as it is in other parts of the world. A fundamental maxim of law which recognizes the importance of the jury states that “judges shall decide questions of law and juries questions of fact…”.
In a criminal trial, the jury’s function is to determine the guilt or innocence of an accused. This is done on a fair consideration of the evidence presented at trial – and no extraneous matters. As such, it is their duty to ensure that accused persons are given a fair trial and that they are treated equally under the law regardless of their wealth, social status, or any prior convictions.
Sequestration of Jury
The judicial system is responsible for protecting an empanelled jury from improper influences and prejudicial information that could affect their independence and impartiality. One option of jury protection is the exercise of the court’s discretion to sequester the jury. Section 34 of the Juries Act CAP 115 of the Laws of Barbados empowers a judge with the authority to sequester a jury under the supervision of the Chief Marshal or his deputy where there is sufficient cause that a fair trial is unlikely because of extraneous matters that could adversely impact the administration of justice. However, whilst it is supported by legislation, the sequestration of a jury in Barbados remains an unlikely occurrence considering the limited human and financial resources available within the judicial system. Therefore, it is duty of the judicial system to utilize other practical ways afforded to it by law to protect the jury and discourage citizens from attempting (whether intentionally or not) to influence or prejudice the minds of the jury.
Barbados v UK Experience
There are no statutory provisions in Barbados which govern the prosecution of a contempt charge under the sub judice rule. This is unlike the United Kingdom which has the Contempt of Court Act 1981. That Act creates a strict liability offence for contempt of court regardless of intent, on anyone who publishes material which creates a substantial risk of serious prejudice to a criminal trial. Contrain Barbados any charge for contempt of court will be considered on the existing principles espoused under the common law.
Under common law, while it may not be difficult to establish that published material (actus reus) can prejudice a jury and adversely impact the administration of justice, the mental element (mens rea) which speaks to intention must also be proved. When evaluating an accused’s intention under such an offence, consideration should be given to the statement of Lord Donaldson in A-G v Newspaper Publishing plc [1987] 3 All ER 277 where he opined that,
“…Such an intent need not be expressly avowed or admitted but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct…”.
Therefore, in the absence of an admission, the court would have to consider all the circumstances before a determination is made on whether the publisher had a specific intent to impede or prejudice the administration of justice.
Rights are not Absolute
An accused individual facing a contempt charge under the sub judice rule may wish to argue that he or she is entitled to freedom of expression and that the public ought to be informed and, have the freedom to openly discuss matters engaging the courts. However, if there was anything the COVID-19 pandemic taught us, it is that rights are not absolute and very often in the public interest, limits in some instances must be placed for the overall public good. It is our opinion that the court must always find in favour of the administration of justice when juxtaposed to the freedom of discussion on matters that are sub judice.
This view is supported by Attorney General v News Group Newspaper [1988] 2 ALL ER 906 at 920 per Watkins LJ where he held that:
“The need for free press is axiomatic, but the press cannot be allowed to charge about like a wild unbridled horse. It has to a degree, in the public interest, to be curbed. The curb is in no circumstances more necessary than when the principle that every man accused of a crime shall have a fair trial is at stake”
Conclusion
Social media poses a grave threat to the administration of justice in Barbados. The warnings of the Court to the local blogger could not have been more timely and serve to ensure the indispensable requirement that accused persons have a constitutional right to a fair trial. Noteworthy is that it is becoming increasingly difficult to protect jurors from access to prejudicial information in a social media world where WhatsApp, Instagram ,Facebook and TikTok all compete to win our attention. Barbados as well as other countries in the region are thus encouraged to develop reliable and innovative ways to effectively mitigate the risk of jurors being exposed to prejudicial material – sooner rather than later.
Disclaimer: The views expressed in the preceding article are those of the authors only and is not intended as, and should not be taken as, legal advice. The use of the information provided in these pages should not be taken as establishing any contractual or other form of attorney-client relationship between any of the attorneys at Versus Legal and the reader or user of this information. Do not act or refrain from acting based upon information provided in this article without first consulting an attorney about your particular factual and legal circumstances
