#BTColumn – Social media poses a threat to justice

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Anthony D. Francis-Worrell and and Graeme A. J. Brathwaite

As the popular Barbadian saying goes “Doan let yuh mout get ya in trouble”. This warning could not be more true, as recently in Barbados, a popular local blogger was excoriated and ordered by a Judge to remove her social media publications that contained likely prejudicial content related to an accused person in an ongoing criminal trial.

Given the possibility that the information could have prejudiced the jurors and adversely affected the accused’s right to a fair trial, an investigation was ordered by the Judge.

Following the investigation, it was discovered that two jurors saw the publications which resulted in their discharge from jury duty prior to the return of a verdict. It is understood that the popular local blogger may now face contempt of court charges for breach of the sub judice rule.

The sub judice rule is used to protect a person’s right to a fair trial by preventing persons from publishing information that may improperly influence a jury or a witness in an ongoing matter.

Social media has transformed the way in which information is shared and received. Information is instantaneous and readily accessible.

When used improperly, social media can have a devastating effect on the administration of justice and, severely impact the ability of an accused person to secure a fair trial. This is particularly the case where juries are involved.

The jury system remains the cornerstone of criminal trials in Barbados as much as it is in other parts of the world. A fundamental maxim of law which recognizes the importance of the jury states that “judges shall decide questions of law and juries questions of fact…”.

In a criminal trial, the jury’s function is to determine the guilt or innocence of an accused. This is done on a fair consideration of the evidence presented at trial – and no extraneous matters.

As such, it is their duty to ensure that accused persons are given a fair trial and that they are treated equally under the law regardless of their wealth, social status, or any prior convictions.

The judicial system is responsible for protecting an empanelled jury from improper influences and prejudicial information that could affect their independence and impartiality. One option of jury protection is the exercise of the court’s discretion to sequester the jury. Section 34 of the Juries Act CAP 115 of the Laws of Barbados empowers a judge with the authority to sequester a jury under the supervision of the Chief Marshal or his deputy where there is sufficient cause that a fair trial is unlikely because of extraneous matters that could adversely
impact the administration of justice.

However, whilst it is supported by legislation, the sequestration of a jury in Barbados remains an unlikely occurrence considering the limited human and financial resources available within the judicial system.

Therefore, it is duty of the judicial system to utilise other practical ways afforded to it by law to protect the jury and discourage citizens from attempting (whether intentionally or not) to influence or prejudice the minds of the jury.

There are no statutory provisions in Barbados which govern the prosecution of a contempt charge under the sub judice rule. This is unlike the United Kingdom which has the Contempt of Court Act 1981. That Act creates a strict liability offence for contempt of court regardless of intent, on anyone who publishes material which creates a substantial risk of serious prejudice to a criminal trial. Contra in Barbados any charge for contempt of court will be considered on the existing principles espoused under the common law.

Under common law, while it may not be difficult to establish that published material (actus reus) can prejudice a jury and adversely impact the administration of justice, the mental element (mens rea) which speaks to intention must also be proved. When evaluating an accused’s intention under such an offence, consideration should be given
to the statement of Lord Donaldson in A-G v Newspaper Publishing plc [1987] 3 All ER 277 where he opined that,

“…Such an intent need not be expressly avowed or admitted but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct…”.   

Therefore, in the absence of an admission, the court would have to consider all the circumstances before a determination is made on whether the publisher had a specific intent to impede or prejudice the administration of justice.

An accused individual facing a contempt charge under the sub judice rule may wish to argue that he or she is entitled to freedom of expression and that the public ought to be informed and, have the freedom to openly discuss matters engaging the courts.

However, if there was anything the COVID-19 pandemic taught us, it is that rights are not absolute and very often in the public interest, limits in some instances must be placed for the overall public good. It is our opinion that the court must always find in favour of the administration of justice when juxtaposed to the freedom of discussion on matters that are sub judice.

This view is supported by Attorney General v News Group Newspaper [1988] 2 ALL ER 906 at 920 per Watkins LJ where he held that:

“The need for free press is axiomatic, but the press cannot be allowed to charge about like a wild unbridled horse.
It has to a degree, in the public interest, to be curbed.

The curb is in no circumstances more necessary than when the principle that every man accused of a crime shall have a fair trial is at stake”

Social media poses a grave threat to the administration of justice in Barbados. The warnings of the Court to the local blogger could not have been more timely and serve to ensure the indispensable requirement that accused persons have a constitutional right to a fair trial.

Noteworthy is that it is becoming increasingly difficult to protect jurors from access to prejudicial information in a social media world where WhatsApp, Instagram, Facebook and TikTok all compete to win our attention. Barbados as well as other countries in the region are thus encouraged to develop reliable and innovative ways to effectively mitigate the risk of jurors being exposed to prejudicial material – sooner rather than later.

Anthony D. Francis-Worrell LLB (Hons) and Graeme A. J. Brathwaite LLB  (Hons) are Attorneys-at-Law both of the Barbados firm Versus Legal. www.versuslegallaw.com