Report No. 200

(10) Publication of interviews with witnesses:

Borne and Lowe state (ibid p. 158) that in principle, it can amount to contempt to publish the evidence which a witness may later give in Court. That is not to say that no statement of a witness can be published pending trial. Statement of witnesses, which have not suffered cross-examination case, in our opinion, present a one-sided picture of the matter.

It may be that some 'bare facts' be mentioned as stated by the above authors to satisfy public curiosity, even if charges are pending in Court. But in-depth interview with a witness can create problems. In this behalf, certain pertinent aspects were referred by the Salmon Committee (Committee on the Law of Contempt as it affects Tribunals of Inquiry under the chairmanship of Salmon CJ, 1969 Cmnd Leo 78, para 31). The Committee said that a witness could be bullied or unfairly led into giving an account which was contrary to truth or which contained a start.

The witness could, in a television interview, commit himself to a view due to tension by an inaccurate recollection of facts. When later they have to give evidence, they may feel bound to stick to what they have said in the media interview. The Phillimore Committee also accepted the above view and were worried about television interview of witness, the authors pointed out: (see 1974 Cmnd 5794, para 55). That Committee stated:

"Television interview import added dangers of dramatic impact. For example, the 'grilling' on television of a person involved in a case can seem to take the form of a cross-examination in Court. It could obviously create risk of affecting or distorting the evidence he might give at the trial. Such an interview could be regarded as 'trial by television'."

The Committee, no doubt, agreed that interviews make a useful contribution to public information.

The authors say that the absence of prosecution for contempt may elucidate that such interviews have not been treated as contempt. But, the authors, say there are dangers as in AG(NSW) v. Mirror Newspapers Ltd. (1980) (1) NSWLR 374 (CA). There was a coroner's inquiry into the death of seven people during a fire accident at an amusement centre. One witness, who had already given evidence, was widely reported as saying, in effect, that an attendant had allowed two children to go on a 'ghost train' into the fire.

The Daily Telegraph, believing that the attendant would not be giving evidence, published a detailed account by him in which he sought to defend himself from the previous witnesses' allegations. Part of that article stated that the publication in Daily Telegraph may sound that he (the attendant) had sent the two kids to death. But, he said, it was not so. He even had to wrestle with one young lad who was determined to follow his mates into the fire and that he had to tear him from the car. The Court of Appeal held that the publication interfered with the course of justice and was contempt and fined the proprietors in a sum of 10,000 Australian dollars.

The authors say that the conducting of interview, with a view to publication of 'background' material after the trial is generally regarded as legitimate practice, but would amount to contempt if it could be shown to have been of a 'bullying' kind such as to deter witnesses from giving evidence.

Payments to witnesses in current legal proceedings for their stories is contrary to clause 8 of the (UK) Press Complaints Commission Code of Practice. (The authors provide a detailed discussion on 'Payments to Witnesses' pp. 408 to 410). But the authors say (p. 409) that "such an arrangement could amount to contempt since it seems to provide an inducement to the witness to 'tailor' his evidence so as to ensure the more financially lucrative result"

In the trial of Jeremy Thorpe, there were allegations (the authors pointed out) there were allegations that the Sunday Telegraph agreed to pay a fee to Peter Bessel, a leading witness, for his revelations as a future witness for a fee being reportedly contingent on a verdict of guilty. This was condemned by the Press Council. Earlier, on a similar issue, the Attorney General promised to make changes in the law, but no such changes were made probably because of action by the Press Council.

Borrie and Lowe (p. 409-410) state that "the practice of paying witness's fee, the amount of which is contingent upon a particular verdict, is undesirable as it is likely to create a risk of prejudice. As we know from the revelations published by the New Statesman (see AG v. New Statesman and Nation Publishing Co.Ltd.: 1980 (1) All ER 644), the jurors in the Thorpe trial were greatly influenced by the agreed payments to Bessell and in any event, such agreements seem obvious inducements to witnesses to embellish and tailor their evidence".

In the post-consultation Report of the Lord Chancellor's office, (March, 2003), it was felt that legislation was not necessary and the media agreed that a self-regulation procedure could be evolved which must incorporate well-settled principles. By February 2003, the proposals made by the media were accepted by Government.

NSW Law Commission in its Discussion Paper 43 (2000) in para 2.45 has enumerated a long list of publication which may be prejudicial to a suspect or accused.

(i) a photograph of the accused where identity is likely to be an issue, as in criminal cases;

(ii) suggestions that accused had previous convictions, or has been charged for committing an offence and/or previously acquitted, or has been involved in other criminal activity;

(iii) suggestions that the accused has confessed to committing the crime in question;

(iv) suggestions that the accused is guilty or involved in the crime for which he or she is charged or that the Jury should convict or acquit the accused; and

(v) comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution or which make favourable or unfavourable references to the character or credibility of the accused or a witness.