Gordon Robinson | Has media learned a lesson?

So, on January 25, media was barred from attending a former MP’s first court appearance.

This caused concerned citizens, including moi, to opine justice wasn’t being served. We were reprimanded by JAMBAR (who, despite agreeing reasons should’ve been given, accused citizens of trying to “pressure” the Judge) and Peter Champagnie, a leading member of the criminal defence bar, who tweeted on January 28:

“For those questioning a Judge’s authority to bar members of the public, perhaps it may be useful to take note of Sections 23 & 13 of the Criminal (Justice) Administration Act & the Gun Court, respectively. Once again, principles of law are overridden with emotions.”

This was a tad naughty as nobody I read or heard suggested the Judge didn’t have “authority” to bar the public. Honest opinion was expressed that she oughtn’t to have done so in this case. My expressed concern was lack of transparency not authority. I tweeted (January 26): “The ‘interest’ of ‘justice’ is always furthered by transparency except children are subject of the litigation. Justice is not a cloistered virtue….”

Press Association of Jamaica (PAJ) called for immediate reversal of the decision “unless there is a compelling explanation and justification. If that is the case, the public must be informed what this is.”

Amen.

PAJ expressly defended “the principle of open justice” which it defined as “any member of the public should be free to observe court proceedings…. except for exceptional circumstances.” PAJ also insisted open justice “serves as oversight for the judiciary and helps maintain public confidence in the justice system.” I agree.

PAJ continued:

“No reason has been given why this case should be an exception to the open justice principle. We see none and believe that, in fact, this case is a prime example of one which must be carefully scrutinized by the media and public.”

#MeToo!

Court Administration Division (CAD) responded (January 27):

“when persons are charged and placed before any Division of the Gun Court…the default position created by section 13 of the Gun Court Act is that members of the public including the media are excluded unless they come within the exceptions.

“The Constitution….provides that a court may exclude persons from its proceedings in two distinct, relevant circumstances. First, if necessary…in circumstances where publicity would prejudice the interests of justice. Second, where the court is empowered or required to do so by law in the interests of defence, public safety, public order, public morality, the welfare of children or to protect privacy” which prompted PAJ to call for a repeal of Gun Court Act section 13.

As usual forests are being ignored as we count trees. But, ok, let’s take Counsel’s advice and look at the statutory provisions he cited.

The Criminal (Justice) Administration Act, section 23(1):

“At any proceedings in relation to any offence to which this section applies the public shall in the interest of public morality be excluded ….”

The applicable offences are mostly sexual including rape and marital rape; but also larceny; and “procuration.”

Everybody knows I’ve zero tolerance for the “sub-judice” rule. In my opinion, it’s an illusion. However, I’ve an inflexible personal rule against speaking publicly about any court case in which I appear. I did once indulge a young, promising broadcast journalist with an interview regarding a high profile dispute of public interest. That was before a Claim was filed. Once litigation begins, NEVER! This is because, apart from a compulsive revulsion for marketing me, I find public statements can do more harm than good and inadvertently release too much information. My mantra is the less said the soonest mended.

Defence Counsel knows more than I about actual and likely charges but, up to January 28, the public only knew of a murder charge. So what exactly is Counsel telling us by quoting legislation regarding sexual offences?

Gun Court Act, Section 13, is as CAD paraphrased BUT section 5(2) wasn’t mentioned. That’s a jurisdictional provision permitting a High Court Division of the Gun Court to “hear and determine any firearm offence OTHER THAN MURDER OR TREASON (my emphasis)”.

I defer to Peter Champagnie’s experience at the criminal defence bar (mine is approximately zero) but, on January 25, his client was only charged with murder. So, I consulted Counsel much more experienced at criminal law than I who assured me murder cases allegedly committed with a gun are tried in the Gun Court Division of the Supreme Court NOT in the Gun Court.

That accords with my reading of the Gun Court Act section 5(2).

Reports are that, on January 29, the accused was additionally charged with a gun offence. Even so, how can the murder charge be tried in the Gun Court? So, what was the Judge relying on except, as she said originally, “discretion”? She didn’t mention Gun Court Act. Why is so much effort expended to argue that the Judge had no discretion but was compelled by law to act as she did?

But, as I said at the outset, this frantic search for “authority” misses the big picture by the distance apart of several art galleries. Even if legislation permits (or commands) barring of media from some criminal proceedings, is that desirable? Is it constitutional?

We might consider learning from the history of countries favouring secret court proceedings or be doomed to repeat international atrocities. As I write, political and social bedlam taints Pakistan after secret trials behind prison walls resulting in further imprisonment of former PM Imran Khan whose only crime appears to be refusal to be anybody’s lackey.

Since we should abhor secret trials let’s see if fundamental law protects us from that ominous eventuality. In that context, let’s take a closer look at Constitutional provisions quoted by CAD.

The Constitution allows a court to bar the public “First, if necessary…in circumstances where publicity would prejudice the interests of justice.”

N.B: The public isn’t barred “in the interests of justice” but only if publicity would PREJUDICE the interests of justice. So, unless it’s established that public knowledge of the charges would somehow obstruct a trial (a.k.a. “justice”) the public shouldn’t be barred. Did any lawyer make such a submission? Based on what facts?

The Constitution continues:

“Second, where the court is EMPOWERED OR REQUIRED TO DO SO BY LAW (my emphasis) in the interests of defence, public safety, public order, public morality, the welfare of children or to protect privacy.”

This basis for barring the public can ONLY come from a Statute. Except for a vague reference to “public morality” [Criminal (Justice) Administration Act - irrelevant to the charges] no quoted law specifically allows a court to exclude the public based on any of the above reasons.

But, just for fun, let’s analyse the constitutional reasons legislation may permit barring the public from court proceedings in light of the charges laid. How would the murder charge offend “public morality”? What’s that anyway? Are there any more salacious details available in a murder trial of a husband accused of murdering his wife than the Beachy Stout matter? C’Mon man!

Is this a public ban or a pubic ban?

“Defence” is national defence not the Accused’s defence. In any event, did Defence Counsel ask for the ban? “Public safety, public order….?” Puh-leeeeezzzzeeee!

Welfare of children? Whose children? The mother of one of the accused’s children brought the child to court. Did anyone submit to the Judge that professional media at a formal court appearance, after informal allegations already saturated social media, would prejudice any child’s welfare? Does “welfare of children” now apply to specific children?

Privacy? Whose privacy? The accused’s privacy is already invaded. Preliminary arraignment isn’t about privacy. It’s a chance to publicly deny charges that have already caused multiple invasions of privacy.

There’s no apparent justification for this ban. Maybe the Judge had authority. Maybe not. I don’t care. Such authority is fundamentally dangerous. It should never be mandatory or self-started. Judicial consideration of legal submissions (maybe in Chambers) followed by reasoned decision should be required.

To be fair, media did this to itself. For decades media meekly submitted to a general constitutional “Freedom of Expression” without insisting on its rightful “Freedom of the Press” protection.

Media, as guardians of transparency, are indispensable components of good governance. Freedom of Expression isn’t Freedom of the Press. Freedom of Expression only allows one to talk (or write). Freedom of the Press allows media to find out things to talk (or write) about. Only national security concerns should fetter Freedom of the Press.

Let this be a lesson for all media. Join the protest against substituting a black King for a white King as “constitutional reform”. Media must be free!

Peace and Love.

Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com