Report No. 200
(9) Premature publication of evidence:
Borrie and Lowe (ibid p. 156) state that a newspaper conducting its own private investigation and publishing the results before or during the trial is perhaps the most blatant example of 'trial by newspaper'. Such publications hider the Court's determination of facts and might otherwise be 'prejudicial'. There is no guarantee that the facts published by the newspaper are true, there being no opportunity to cross-examine nor to have the evidence corroborated.
There is no guarantee that the published facts will be admitted at the trial, if it amounted to hearsay. In R v. Evening Standard, ex p DPP (1924) 40 TLR 833, the Court found that certain newspapers 'had entered deliberately and systematically on a course which was described as criminal investigation'. The defence of the newspaper was that they had a duty to elucidate the facts. This defence was rejected by Lord Hewart CJ (p. 835) as follows:
"While the police or the Criminal Investigation Department were to pursue their investigation in silence and with all reticence and reserve, being careful to say nothing to prejudice the trial of the case, whether from the point of view of the prosecution or of the defence, it had come to be somehow for some reason the duty of newspapers to employ independent staff of amateur detectives who would bring to an ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence.... "
To publish results of such investigations could prejudice a fair trial and will therefore amount to contempt. In that case, the proprietors of Evening Standard were fined 1000 pounds and two other papers, 300 pounds each. The authors, however, point out (pp 157-158) that today the position has changed with 'investigative' journalism. Cases such as Watergate etc. the Thalidomide case were the work of journalists.
But, in our view, assuming investigation journalism is permissible, if that is continued after criminal proceedings become 'active' and a person has been arrested, and if by virtue of the private investigation, the person is described as guilty or innocent, such a publication can prejudice the courts, the witnesses and the public and can amount to contempt.