There is a centuries-old tradition in democracies that justice should be administered transparently.
This system helps keep the public abreast of arrest and court proceedings; it fosters accountability; and it educates citizens on how the laws affect them and the society in which they live, among other benefits.
For such reasons, we are concerned that the High Court and the police have recently taken steps that transparency advocates say are out of keeping with international standards of open justice:
• In November 2013, the court began regularly excluding journalists from sex-crime trials involving juvenile complainants;
• in March 2014, the court issued a blanket ban prohibiting media outlets from hosting online comments about ongoing trials; and
• last month police started omitting names from their weekly arrest blotter, effectively withholding the identities of people charged with crimes.
All of these measures are unusual in democracies, and the first two could be without precedent.
Don’t get us wrong: We fully respect the authority of the court and the police alike, and we believe that they are doing their best to balance conflicting demands in a rapidly changing digital age. Administering justice, after all, involves weighing privacy rights against the public’s right to know.
We also recognise that the recent restrictions have been motivated in large part by irresponsible journalism: Some web-based news outlets have repeatedly broken court rules.
Nevertheless, we hold with transparency advocates — including the Vienna-based International Press Institute, the United States-based National Freedom of Information Coalition, and the Caribbean Media Workers Association — who claim that the recent restrictions go farther than necessary.
To ensure the protection of open justice, we recommend the following steps.
Firstly, with few exceptions the court should again allow the media to cover sex-crime trials involving adult defendants and juvenile complainants.
Journalists were typically granted this freedom before November 2013, when Director of Public Prosecutions Wayne Rajbansie announced a “policy” of requesting that such trials be held in camera, effectively excluding the media and the public. (Since then, the High Court has routinely agreed to these requests, though magistrates have been reluctant to do so, often rightly citing the importance of open justice.)
Internationally, it is unusual for the media in a democracy to be excluded for the duration of a criminal proceeding against an adult. Moreover, before the DPP’s “policy,” the High Court here managed to protect juveniles’ privacy without going so far. Judges, for example, frequently instructed journalists as to the extent of the reporting allowed. Thus, the public was able to learn what transpired during sex-crime trials without learning a victim’s identity.
Transparency is particularly important in the case of sex offences, as perpetrators often depend on a culture of secrecy. Such crimes are all too common here, and the public needs to know who the offenders are, how they operate, and how they are brought to justice.
Secondly, the court should also reconsider its unusual blanket ban on media outlets hosting online comments during trials. The Beacon has never hosted such comments — in part because they are difficult to properly police — but transparency advocates make a strong argument: Other courts, they say, have blocked online comments in particular instances, but the VI’s blanket ban is an unnecessarily broad restriction on free speech that could also stifle fair comment on court proceedings.
The measure also seems rather peculiar given that comments are allowed on mediums such as Facebook and other social media sites.
None of this is to say that the media should necessarily allow comments on court proceedings even if the ban is lifted. In recent years, some online news outlets have frequently allowed anonymous comments that are frankly despicable, undeniably failing to live up to their responsibility to the community.
In such instances, a targeted approach by the court might be more practical than the blanket ban. The court and prosecutors, after all, have the authority to bring a contempt-of-court charge against any news outlet that publishes inappropriate material that might prejudice a trial.
Finally, the police should retract their decision to omit names from arrest blotters, which changed a practice that was in place long before the 2007 Constitution enshrined freedom of expression as a fundamental right.
Police forces in the United Kingdom and most other democracies routinely report the names of people who have been charged with crimes. Though other UK overseas territories sometimes operate differently, they are the exception rather than the rule, and we see no convincing reason that the VI should follow their example.
VI police have pointed out that defendants will be identified when they appear in court. This is true, but it is not enough: There are three Magistrates’ Courts in the territory, none of which issues a public schedule, and cases are often heard at irregular times. No media outlet currently operating here will be able to identify everyone who has been charged simply by attending court.
Also troubling is the fact that VI police have refused to release their media policy or to adequately explain the reasoning behind the recent change, which came under an acting commissioner. They should do so soon.
If they don’t, Governor John Duncan, who has responsibility for the police force, should step up to the plate. So far Mr. Duncan, who has repeatedly touted his commitment to transparency, has not commented on the police’s decision except to say that he is in discussions with acting Commissioner Alwin James.
Though the territory still has a long way to go in terms of transparency, much of the government has made slow progress in recent years.
Moving forward, we hope the justice system will help lead the charge.
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