The conduct of the press in reporting the alleged rape purportedly committed by the Commissioner of Police is outrageous to say the least.
In as much that the Commissioner has not been charged to date, the common law has long recognised that adverse pre-trial publicity can prejudice a fair trial. In AG v Times Newspapers Ltd Lord Diplock stated the principle thus:
“The due administration of justice requires… that all citizens… should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision be based upon those facts only that have been proved in evidence and deduced before it in accordance with the procedure adopted in the courts of law.“
Later in AG v English Lord Diplock said:
“Trial by newspaper, or as it should be more compendiously expressed today, trial by media is not to be permitted in this country… the true course of justice must not at any stage be put at risk.”
Despite the constitutional guarantee of freedom of expression there are also constitutional limitations which protect the rights of persons concerned in legal proceedings or prospective legal proceedings. The poison of prejudice must be kept away from the well of justice in order to preserve the constitutional right to a “fair trial.”
In England adverse pre-trial publicity is now punishable under the Contempt of Court Act 1991.
In the recent case of R v Abu Hamza UK (2007) the Lord Chief Justice made it clear that proven prejudice, or risks of prejudice may prejudice a fair trial. He said:
“The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial… Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial.” In R v Hassan and Caldon (1995) the judge stayed criminal proceedings because of adverse pretrial publicity. The judge held that the article published by the News of the World was grossly prejudicial. The News of the World was later cited for contempt and fined £50,000.
Since the allegation was made public it is clear from the press reports and from reports from other quarters that the Commissioner has been tried in the court of public opinion and found guilty. The press is now congratulating itself for a case argued in public. Should the Commissioner be charged the conduct of the press is likely to give rise to several pre-trial issues.
The rule of law requires and our constitution provides that a person who is accused of an offence is innocent until he is proved guilty. All lawyers should be aware of that golden rule. It is difficult to understand therefore how the lawyer-politicians Ramjattan and Trotman have allowed the very breach of principle of which they have from time to time been accusing the PPP government of committing. They are demanding that Commis-sioner resign or be dismissed on an allegation made by a woman.
The recent case of the head of the IMF, Dominic Strauss-Kahn, is testimony that one should not condemn on a complaint because an allegation of rape is not proof of rape. The same prosecutors who instituted the charges upon further consideration of the woman’s allegation of rape were obliged to confess to the court that the complainant was not a credible witness and in the circumstances were forced to withdraw the charges against Mr Strauss-Kahn.
So those who are prematurely calling for the dismissal or resignation of the Commissioner should first seek to
ascertain whether what the complainant has told the news media is the whole story and on an examination of her character whether the allegation of rape is credible or whether she lacks credibility.
Neil Aubrey Boston