Generally, in most civilized legal systems, the administration of justice was done openly, in full view of the public. This was particularly more important in the case of criminal cases where the accused is seen as having a right to a public trial. With the advent of modern media, especially television, high-profile cases are brought within the living room of the public all over the world. However, this coverage of legal proceedings under media focus is seen as being detrimental to important values such as the privacy of parties, rehabilitative considerations, national security, commercial secrecy, and the need to safeguard witnesses and jurors from intimidation.
With recent advances in communication and broadcasting technology, people are surrounded by images of crime, law enforcement, and the criminal justice system. The public is fascinated by the crime scenario, mostly because they don’t have direct contact in these matters and have to depend on media reports to get information. The truth of the matter is that journalists do not have an absolute right to freedom of speech in Australia.
Laws regulate and balance public discussion and the transfer of information (Gregory, 2005, page 9). The issue in courts is often described as a balancing exercise between the rights of an accused to a free trial and the ability to disseminate information from an open court (Gregory, 2005, page 9).
The mediation of the reality of crime and of audiences viewing crime partly as factual news and partly as entertainment has lead to several views regarding the role of media in shaping public perception of law enforcement agencies, the courts, prisons, the offenders, and the victims. The media in the context of the criminal justice system impacts public opinion in a negative way as it strays from its regular function of educating the public by providing information to providing infotainment for a growing market and distorting information to cater to the interests of higher authorities.
Criminal courts are attractive to media people mainly because they contain conflict and drama, two elements that appeal to the voyeur in ordinary citizens. Michael Connor in his book about Australia’s first newspaper describes the fascination of the readers with a big murder case in 1803. Connor (2004) said that the readers were moved by the twists and turns of the case that was published in dramatic weekly episodes in the Sydney Gazette. It is easy to see that the readers are interested in the human struggle, the sadness and anger elements in the crime story whereas the judiciary conducts a trial objectively and not based on emotion.
The issue of television coverage of court proceedings has become a much-debated issue in Australia where it is not the general custom to have the proceedings broadcast. Justice Susan Kiefel of the Federal Court felt that most cases in Australia do not have sufficient interesting matter so as to sustain audience interest for total trial coverage (Herman, 1999). One major aspect to be noted is that Australian courts exercise great control over the proceedings and the lawyers.
To quote Kiefel: “Even a judgment in a very controversial case, such as the maritime dispute, hardly makes for a riveting broadcast”(Herman, 1999) This is mainly to avoid the conduct of judges, lawyers, and witnesses from being influenced by such television coverage.
Professor Kaiser of Dalhousie University, in June 1995 has opined that judges viewed the media as superficial, biased, inadequate, sensationalizing, inaccurate, unfair, irresponsible, damaging to the public interest, misleading, and so on (Herman 1999). Prof Kaiser says that this negative picture of the media by the judges is mainly due to their distorted perception that the public is totally dependent on the media for information and that the public needed the media to give them a clear picture of the criminal trial proceedings. This underrating the perceptive power of the public, according to Prof Kaiser, “might reflect a certain defensiveness arising from the alienation of the public from the courts” (Herman 1999).
The public can know and understand the courts and their procedures only when they are educated through the media or through the courts themselves. Their lack of such knowledge, Justice Kiefel holds, is a basic problem in society. Kiefel here underlines in a subtle manner that the role of the media in regard to criminal trial proceedings is to educate the public (Herman, 1999). According to Solomon, the role of the media is “to report what happens in the courts and to provide intelligent and critical analysis of the courts” (Herman, 1999)
According to researcher Sara Sun Beale, the news media’s treatment of crime and violence is under a great deal of commercial pressure and media coverage has a great deal of influence in shaping public opinion, and criminal justice policies (Beale, 2006, page 397). Beale holds that news media do not always truly reflect the events in society such as trial proceedings; rather their content is often distorted by economic and marketing obligations. The depth and fashion in which crime stories are reported depend to a large extent on viewer demand and advertising strategies that target demographic groups that have a taste for violence (Beale, 2006, page 397).
Beale also accuses newspapers of becoming victims to the market and of using crime stories to grab the attention of the readers. Philip Smith and Kristin Natalier (2004) in their book titled “Understanding Criminal Justice” do agree that media reporting of crime and police activity is distorted (116). They further hold that there is an undue focus on violent and sexual crimes, on crimes that are solved, and on high-status offenders. This kind of reporting helps to generate a positive image of the law enforcement authorities (Smith and Natalier, 2004, page 116).
Sentencing is a part of the criminal justice system that is often focused upon by the media (Smart Justice, 2008, page 1). In this context, public opinion exerts greater influence over government policy than expert opinion. Media, through its coverage of crime events, creates a fear of crime in the public mind and hence the public opinion calls for harsh punishments to criminals despite the general consensus among experts that such measures do not necessarily reduce crime.
Most people in Victoria have few clear facts about crime and imprisonment rates, conditions in jail, and non-custodial sentencing alternatives, and all they know depends on media coverage. Dr. Karen Gelb of the Sentencing Advisory Council says that the mass media plays “an integral role in the construction of both public opinion and the public ‘reality’ of crime” (Smart Justice, 2008, page 2). Though it is the duty of the media to inform the public regarding crime events, the media chooses to report only a few of the crimes and these are generally the most sensational, violent, and horrific crimes. Such media portrayal gives a wrong picture of crime in Victoria and nurtures fear among its citizens.
Irresponsible reporting of crimes by the media can have the following consequences:
- There is the assumption that crime is most violent. In a 1987 Perth study, Dr. David Indrmaur found that 73% of people interviewed believed that violent crime was between 40-100% of all crimes, rather than the reality of 8%. This can be directly attributed to the nature of crime reported in the media (Mason, 2004).
- There is an assumption that the crime rates are increasing: The 2003 Australian Survey of Social Attitudes found that 70% of Victorians believed that crime had increased over the previous 2 years, with 39% believing that it had increased a lot. In reality, during the previous two years reported crime rates had actually decreased. Here, media coverage has distorted people’s opinions on crime rates (Smart Justice, 2008).
- There is the assumption that prisons reduce crime: In reality, 45.6% of Victorian prisoners return to corrective services within 2 years, and 38.2% of Victorian prisoners return to prisons within 2 years. Moreover, the Northern Territory which has the highest average daily imprisonment rate of all States and Territories also has the 2nd highest recorded rate of overall crime in Australia (Smart Justice, 2008).
The way a media performs its role amidst the general public depends to a large extent on the journalists covering the court proceedings. When the journalists have legal training or are specialists in reporting criminal trial proceedings, Keifel points out that they are less likely to fall victim to the stereotypical image of judges and some of their other characteristics. Some reporters do not know the media law and hence are unable to draw the line between what is right to be reported and what must be censored. These journalists feel the threat of contempt proceedings hanging over them.
Abercombie et al (2000) describe two opposing views of the impact of media on the public in the realm of crime reporting. First, the media coherently promotes the views of the power to an uncritical audience, and secondly, the media represents a variety of views allowing the audience the freedom to react critically (Peelo and Soothill, 2005, page 35). While the latter option is ideal, too often the media is caught up serving the interests of the powerful – who could be the accused or the police, or the victim. In order to prevent media from serving the interests of the powerful, a number of restrictions have been imposed on the media, by the courts of Australia on the pretext of ensuring a fair trial.
First, the media is not allowed to freely report on a crime when the person has been charged and there are large fines if the media chooses to report the name of the accused and expose the facts of the crime or publish the victim’s image. Next, there should be no reporting of the fact that a person charged has a criminal record. Finally, there are statutory restrictions on the naming of those in children’s courts or identifying victims of sexual abuse.
Courts can issue suppression orders in particular cases and this hampers reporting of cases by the media. Another point of conflict between the courts and media is that journalists are required by the courts to disclose their “confidential” sources of information and there have been several instances when journalists have been forced to pay fines or imprisoned for not disclosing names. Sub judice means that a case cannot be discussed in the media because such profiling might affect the operation of the court (Brown, 2002 page 111).
In Australia, a case is sub judice once proceedings convene in the court, and no one can report anything that is likely to affect the trial. In a criminal case convene means the moment a warrant is issued for a person’s arrest. It can also be referred to a person in custody for providing help to the authorities (Brown, 2002, page 111).
Queensland law courts hold the view that a person cannot be identified until after committal as opposed to when court proceedings end. The sub judice rule is aimed at preventing the media from prejudicing a fair trial by influencing public opinion and the opinion of the judges.
David Solomon, Contributing Editor of the Brisbane Courier-Mail, points to the instance when a small group of criminal lawyers had deliberately encouraged media coverage of their client’s cases in an attempt to have trials aborted (Herman, 1999). The aim was to create an atmosphere where the prospect of a fair trial could be declared to have been prejudiced. Thus, the media is sometimes used by lawyers and the police to enhance prosecutions. The police do this by ensuring that the media is present during arrests, or when prisoners are transported in and out of vehicles.
These rules are misused by both the media and the people involved in criminal cases. While it makes it impossible to trust a reporter to filter out any mistakes made in an interview, it also means to the people involved that they cannot say anything about the case at all. Some facts about the case are completely safe as they do not have much of the influencing factor on public opinion, but some other facts are not safe and these include prior convictions, confessions, identity, evidence, motive, character, guilt or innocence, private investigations and anything else said in the absence of a jury.
This makes it very important for people involved in the case to be careful about what they say to the media (Brown, 111). Managers and executives often refuse to give any information as they treat the Freedom of Information Act 1992 and the Privacy Act 1988 as opposing weapons. The refusal to give information is a deliberate use of privacy laws to manipulate the media. Australia has moved towards greater protection of privacy through the Privacy Act of December 2001.
David Solomon, while addressing the Australian Institute of Judicial Administration (the AIJA) committee, pointed out that only one of the 16 recommendations made by the AIJA referred to the media and that recommendation was to appoint media liaison officers in all courts and suggested that courts issue summaries of judgments through media liaison officers (Herman, 1999). Solomon says that despite such recommendations, the media is relatively unprotected: “The major problem for the media in Australia is that we have no equivalent to the first amendment guarantee of freedom of speech and the press in the United States Constitution.
Until recently there was no constraint on the defamation laws which the states might pass”. As a result of the lack of clear media laws, there is a multiplicity of laws in Australia depending on the states. In some states, it is held that truth alone is a defense to an act of defamation whereas in some others it is true along with the parameter of public benefit. There are differences among the states and territories of Australia regarding the defense of fair comment, and the reach of a claim of qualified privilege.
Though there have been attempts to pass a uniform defamation law, it has not yet been achieved. Solomon says that this could be due to the support of the politicians who stand to gain by defamation suits. Apart from direct money given to them as victims of defamation, they also benefit from defamation laws in an indirect way as these laws thwart the media from printing information they have for fear of defamation suits.
Smith and Natalie say that the media can play a huge intermediary role between the police and the public, providing the public and the police with information on crimes and advising the people about crime prevention strategies. Presently public are getting most of their information on crimes from infotainment programs like Australia’s Most Wanted (Smith and Natalier, 2004, page 117). Sometimes it is possible that the police may need the media to keep away certain facts of the crime away from the public.
Due to this mutual interdependence, critical media scholars have suggested that media often takes the side of the police. Stuart Hall (1973) has suggested that generally strikes and demonstrations are shown in the mass media from the standpoint of the police. Photos are taken from behind police lines and hence political struggles are often depicted as unruly behavior of non-patriotic elements. However, the relationship is not always smooth and there are conflicts between the media and the police at times.
Police often feel they are unfairly criticized in the media (Smith and Natalier, 2004, page 116). In 1991, Australian Broadcasting Corporation, while filming its documents Cop it Sweet, followed ordinary police officers in uniform on their daily rounds and intended to capture a realistic account of their everyday life. Though it was made with the express consent of the police officers, the documentary boomeranged on them. Cameras captured officers pocketing evidence, using racist and sexist language, having contempt for Aborigines, and being intimidating towards the public.
On another side, the police have joined with the media to provide misleading information to the public in order to enhance their own images. The Police Media Liaison Bureau in Victoria, Australia, while covering illegal police shootings, tries to draw attention to the links between the victims and previous violent crimes.
This deflects the attention of the public from the main event of the shooting and its legitimacy. Thus, in Australia, the media and the police have a complex relationship of dependency and antagonism. In recent years, the media has acquired a great deal of power and hence the law enforcement authorities are beginning to see the media as an “adjunct component of investigation and crime control and public image management and not simply as the recipients of press releases” (Smith and Natalier, 2004, page 117).
The impact of media on public opinion in the context of criminal justice rests on two facts: the escalation of the use of crime events such as sex and violence as infotainment in an increasingly competitive world and the use of impression management as a major political tool in a mediated world. Infotainment refers to the entertaining presentation of information, in order to satisfy the consumers. This means there is a focus on style and packaging of media output and can provide distorted accounts of crime events.
As such media focuses on providing crime reports that are sensational, violent, and highly personalized instead of in-depth political commentary or sustained analysis as is their duty. Distortion refers to the impression created about a particular crime event and the impression given about the prevalence of particular types of crimes. Reiner states that the “proportion of different crimes represented is the inverse of official statistics” (2002: 393). This has been found to be true in the media treatment of sex, violence, and homicide.
In the context of how media representations of crime impact people, two emotional states have been widely researched and discussed: aggression and fear. Kidd-Hewitt (1995) has described that television reconstruction of crime to assist in its detection is leading to confusion through a mix of fact, fiction, and fictionalized fact. Presdee (2000) says that crime also gives pleasure to a lot of people. He argues that the commodification of crime includes commodification of the emotions surrounding it including excitement and pleasure.
People who have been impacted directly by the media in the context of crime reporting have mixed feelings. The media does provide a meaningful way to gather information. Murders have often been covered widely and families of victims of murder depend on these media to help find killers. However, this exposes them to the public eye constantly at a particularly vulnerable point in life. Even when the stories are so framed that they depict the victim’s perspective, families of murder victims often feel that the treatment by representatives of the media is usually exploitative and insensitive (Peelo and Soothill).
The sub judice rules are often flouted by the journalists not just because of ignorance of the law but because of their desire to have a powerful influential story. Another reason for their flouting the sub judice rules could be the assumption that the accused person is guilty even though the judicial system has to take its own course to pronounce him guilty. Here is an example of a case when the media assumed the accused is guilty:
The Harry Blackburn Case: On 24 July 1989, Sydney police arrested an ex-police superintendent Harry Blackburn in relation to a series of sexual assaults that stretched back to 1969. Blackburn who had no criminal record was paraded before the media before being taken to the Sydney Police Center and charged with 25 offenses (Alysen, 2006, page 266). Police ensured that Blackburn’s face was shown clearly by the media.
Television viewers were told that Blackburn a former senior policeman was a rapist who had been terrorizing women in Sydney for more than 20 years. However, the case against Blackburn was shaky and three of his supposed victims said he was not their attacker and forensic evidence also negated his involvement in the crime. The charges on him were soon dropped. Blackburn brought a defamation action against the NSW government, which was settled out of court. But he chose not to fight the media in order to put the trauma behind him. Another similar case was the Paul Mason case during the same year.
In Mason’s case, six media outlets, four of them television channels were convicted of contempt and fined. The ABC was one of the organizations and its report cost $120000 (Alysen, 2006, 266). The lesson learned from the Blackburn and Mason cases was that media should treat information from the police with caution and skepticism and not allow themselves to be seduced by the excitement of being treated as an insider in crime detection and law enforcement.
In a letter addressed to the Australian Press Council, John Foley calls for action to be taken against media that report a crime in an irresponsible fashion (Foley, 2000). He particularly points to the reports with details of attacks on the elderly, including explicit pictures. According to Foley, these reports have alerted hoodlums in society to the vulnerability of these people. “While the elderly will concede that media reports have put them on guard to expect attacks, they are very much aware that constant graphic news coverage has lifted crimes against them to endemic proportions” (Foley, 2000).
There has been a report in The West Australian in September 1999 describing a home invasion in which a young woman was forced to surrender money under threat of being sprayed with petrol and set alight. Such reporting causes fear in the minds of the lonely and depressed and teaches criminals new and effective ways of committing crimes (Foley, 2000)
. Crime is an unpleasant aspect of society that is tackled through various measures chief among them being prevention and detection. When detection leads to successful prosecution, the criminal justice system ensures there is a punishment which in turn has the ability to deter crime and thereby enhance prevention. However, logical reasoning would conclude that prevention is much better than cure in the realm of criminal justice as in many other fields.
It is in this context that the role of the media must be examined to find out whether media is truly contributing towards the prevention of crime. By distorting facts and by being an instrument in the hands of the powerful media coverage of crime events proves to be detrimental to the cause of criminal justice. However, it is also possible for media coverage to serve the cause of criminal justice by educating the public with facts regarding crime and justice.
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