The purpose of a jury is to protect from possible oppression an individual who has been charged by the state with violating its laws, writes Dinah Spence. The burden is placed firmly on the state, the prosecution, to prove beyond reasonable doubt in the minds of the jury that the accused is guilty. The accused is presumed innocent until that burden has been discharged.
What would be the mindset of the 12 jurors sworn in to decide whether the prosecution has discharged that burden of proof if Maxine Carr and Ian Huntley go on trial a year or so from now? A number of trials have famously been abandoned, or convictions later quashed on appeal, as a result of media coverage that did not go far enough to be in breach of the Contempt of Court Act, but went far enough to prevent a fair trial.
Last Friday, the Attorney General wrote to media organisations to warn them of the risk of prejudice in the case. However, it is possible that the damage has already been done. Prejudice will almost certainly be a factor in the defence of Maxine Carr, whose solicitor has already spoken out against the level of "extremely worrying" and "potentially prejudicial" coverage. Cambridgeshire Police have been reported to have concerns that "much" of the reporting has been in breach of the Contempt of Court Act.
A free press is a further balance on the power of the state. However, at times the court needs to balance this with the rights of individuals. Article 6 of the European Convention on Human Rights provides that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal".
An independent and impartial tribunal is one free from improper influences, including prejudicial press comment that may lead to bias or prevent the jury from making its decision solely on the basis of the evidence put before them.
To minimise any prejudicial impact of media reporting on the trial, the court could place restrictions on future reporting, but that will not deal with any "damage" that may already have been done.
It could postpone the trial so that the effect of the recent reports will fade. However, that may cause prejudice to the accused and is inconsistent with the Article 6 right to trial within a reasonable time. The court could change the venue of the trial.
However, where, as in this case, the reporting has been national and of national interest, that is unlikely to have great effect. It could sequester the jurors to censor what the jury can see while the case is in progress. However, that does not deal with the damage that may already have been done. The court could vet the jury for prejudice. In the 1995 Maxwell case, the judge and barristers agreed a questionnaire to identify those jurors who might be prejudiced as the result of the media coverage. Nearly 50 per cent of the potential jurors were excluded on the basis of their answers.
Finally, the judge could also direct the jury in respect of irrelevant or prejudicial material, trusting them not to take them into account. The fact of that direction would be relevant on any appeal against conviction because, by giving the direction the judge will have acknowledged that reports have created a risk of prejudice.
Dinah Spence is a partner in the contentious media group at Charles Russell