There is a range of legitimate judicial opinion on the application of the principle. It has always been so.
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It always will be so. The search for the middle ground, an instinctive judicial response to the dilemma of choice, was well described, perhaps satirised, by Lord Hoffmann. It is a noble passage worth quoting at length:. This judgment was delivered before the United Kingdom adopted the European Convention. However, Lord Hoffmann referred to Article 10 of the Convention and noted the limited list of exceptions to its guarantee of freedom of speech.
His Lordship concluded:. Further, in his Goodman Lecture of , Lord Hoffmann modified his position by denying that freedom of speech always trumps other rights. These perspectives can lead to different weight being given to freedom of speech in a balancing process.
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One retired judge of my court expressed a widely held view:. If I may be permitted the sin of self quotation, in a case in which a television crew trespassed on land in order to confront the owner with his iniquity, I said:. The media do not need to rely on such high minded rhetoric. Too often it sounds like self-serving cant. No Bill of Rights anywhere in the world contains a freedom to entertain.
The media can serve the public interest by pursuing its own interests. The interaction of the principles of open justice and of freedom of speech, with other doctrines of the law, is at the heart of much media law.
The principle of open justice has important implications for the law of contempt, for the interpretation of legislation and for the exercise of powers by a court which impinge upon media access to proceedings in court. The principle often interacts with other rights.
For example: the right to reputation, the right to privacy and the right to a fair trial. Each of these interfaces raises a major topic. I will focus on the latter.
This interaction raises difficult issues for the application of each principle with important implications for the media. The interaction requires a court to compare essentially incommensurable matters. The values served by openness cannot be measured on the same scale as the values served by a fair trial. It is like asking whether one object is longer than another object is heavy. Many take the opposite position of those who believe freedom of speech is a trump.
Lawyers are prone to refuse to accept any balancing which would diminish the right to a fair trial found, for example, in Article 6 of the European Convention. These words have been held to encompass the requirements of a fair trial. For persons who are advocates of particular interests, or hold a particular intellectual perspective, the terminology of balancing is not always acceptable.
The reason is obvious. Balancing necessarily results in occasions when the particular interest or perspective takes second place to some other right or principle. These issues have been much debated in the United States. Perhaps a better way of approaching the issue is to discard the metaphor of balancing and to focus on the scope of the right in issue.
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As one author has observed:. He said:. For example, a statute requiring the exclusion of the press and public during the testimony of underage victims of sexual assault was found unconstitutional. Other common law nations also recognise the significance of freedom of speech and of freedom of the press. In comparative terms, however, the First Amendment ensures that the outcome of virtually every conflict between freedom of speech and other rights and principles is quite different in the United States than in all other common law nations.
The position in Australia is exemplified by one case in which I sat, when the NSW Court of Appeal had to determine whether in the Australian law of contempt the conflict between freedom of speech and a fair trial was such that the balance had been predetermined by giving the right to a fair trial predominance. At the time of publication that person had been committed for trial on charges of supplying heroin. The Court decided by majority that there was no predetermined balance and that the public interest defence to a prosecution for contempt had been made out.
My judgment proceeded by balancing the public interest in freedom of speech against the public interest in the administration of justice.
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It appears to me that the same mild form of tilting existed in the courts of England and Wales, at least before the Human Rights Act UK. The conflict between the principle of open justice and the principle of a fair trial is most acute in the context of jury criminal trials. In many jurisdictions, such as Australia and in England and Wales, the civil jury has all but disappeared.
That is not the case in the United States. In all common law jurisdictions, however, despite the steady expansion of the significance of matters heard in the summary jurisdiction, the more important criminal trials continue to be conducted before juries. As far as I am aware, save with respect to complex corporate or fraud cases, there are no serious proposals that this situation should change.
Over many centuries the common law developed a series of elaborate procedures and rules for channelling, and in some respect restricting, the flow of information that is made available to jurors. Indeed, most of the law of evidence is concerned to exclude evidence so as to ensure a fair trial where the tribunal of fact is a jury. One of the most important manifestations of the principle of a fair trial is the withholding of evidence from the jury.
Another aspect is that judges and juries should not be subject to external pressure to decide in a particular manner. It is an essential characteristic of a fair trial that the jurors decide the case upon the evidence that is allowed to be adduced in the trial and which has been tested in accordance with the common law mechanism of trial, particularly by the legal representatives of the accused. Whether this is called due process or natural justice, there is no more fundamental rule in our procedure, especially in our criminal procedure. I do not think any common lawyer would believe that a fair trial could be said to have occurred unless this rule was observed.
How the courts should handle the actuality or prospect of publicity before or during a trial is something that arises frequently. After all, the courts are one of the great forums of public theatricality. It is probably no accident that reality television only took off after the OJ Simpson trial. We were there first. The differences between Australian and United States approaches to media publicity relating to criminal cases has been the subject of an exhaustive academic analysis.
In order to ensure a fair trial, courts in the United Kingdom, Canada and Australia rely upon restraint of pre-trial publicity, whether by formal orders or informal restraint by the media itself, determined in large measure by the uncertainties of the law of contempt.
The First Amendment virtually rules out deterrent sanctions on the dissemination of prejudicial publicity and also the use of injunctions forbidding the publication of specific material. This leaves little room for the strategies of court closure, actual restrictions on publication or ex post facto prosecution.
The United States approach is to control the jury, rather than the publicity. This involves a range of remedial techniques including extensive voir dire examinations of prospective jurors and a greater use of sequestration of juries. Other nations do not engage in anything like that kind of exhaustive investigation and questioning of potential jurors. So far as I am aware, sequestration is now quite rare outside the United States.
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The extent to which the principle of a fair trial may conflict with the principle of open justice will be determined by a judgment as to the ability of a jury to set aside irrelevant considerations in the course of its deliberations. This is a matter on which judges will have a range of different views. I have often expressed the view that the tendency to regard jurors as exceptionally fragile and prone to prejudice is unacceptable. I base this opinion on a considerable body of experience of trial judges to the effect that jurors approach their task in accordance with the oath they take and that they listen to the directions they are given and implement them.
I am not sufficiently familiar with other jurisdictions to give anything more than impressions. Canadian judges appear to trust juries more than they used. Judicial attitudes have been influenced by studies of jury behaviour. New Zealand and Australian studies conclude that juries are able to ignore pre-trial publicity or, at least, jurors said so in answer to express questioning.
Allowing for a natural reluctance to admit such influence, the studies concluded that the effects were in fact minimal. These studies have frequently been referred to in judgments, including in England. In New Zealand the Court of Appeal, which had said in that the absence of empirical data meant that a tilt should remain in favour of a fair trial over freedom of expression,  has relied on the New Zealand research to adopt reasoning indicating a higher level of preparedness to trust juries. Indeed there have been so many that it is possible to study the studies.
One such meta study considers the results of 44 other studies. Furthermore, Australian and New Zealand courts make suppression orders on a regular basis, much too regularly media lawyers frequently suggest.