tim's experiment

I have written before about the continuing failure of our legal leaders to enforce legal restrictions on media coverage of trials. These restrictions are intended to protect the rights of defendants and victims. If they are not enforced they will fall into disuse and the rights of defendants and victims will not be protected. Another grim landmark in this continuing process was passed last Tuesday.

An elementary point made in all media law courses is that one should generally not publish pictures taken of defendants outside the court. This piece of advice is of great antiquity. The reason is to avoid polluting the evidence of witnesses who may later be asked to identify the person they saw doing the crime. If they have already seen a picture of a person described as a “suspect” then they may be influenced in the direction of identifying that person as a criminal. Bold media outlets may decide to publish a picture if they believe that identity will not be an issue at the trial, in which case no offence is committed. But this is a dangerous game because you don’t really know. The prosecution is not obliged to tell you, and even if they do there is no legal bar to them changing their mind later. Also the issue may come up later from the defence, for example if the defendant offers an alibi. A further problem is that if the defendant is pictured in a “criminal” context this may influence future jurors.

Now turn to the SCMPost City Section for last Tuesday, on the front of which is a four-column picture which will be a boon to future writers of “how not to do it” textbooks. Here we see a gentleman called Zheng Xingwan, who at the time was the only person arrested over the Queenie Law kidnap case. He had been charged with a mass of verbiage “commonly known as kidnapping”, as the Post’s reporter put it, and been remanded in custody. And there he is in the picture, large as life, and just in case he doesn’t look criminal enough for you, wearing handcuffs.

Readers may wonder if this was the approach favoured by other media. Well two Chinese-language news websites had the same picture and put a black rectangle over the eyes. Presumably their parent newspapers did the same. The Standard reported that Mr Zheng had arrived with a bag over his head, and printed a picture in which he was still wearing it.

Was this a one-off oddity caused by the absence of specialised sub-editors, an ill-advised economy popular with newspapers in these internet-threatened days? Not at all. This Friday (May 15) the City section has on page C4 an even larger (five columns) picture of a Mr Rashid Khan, who was leaving court after being charged with manslaughter. I do not know if identity is going to be an issue in Mr Khan’s trial, but he is going to have an up-hill struggle if it is.

What is going on here? I am left with a number of possible theories which I suppose I shall have to share with future students. The law on this matter is either:

1. It doesn’t apply to the Post.

2. It doesn’t apply to cases involving mainlanders or people with Pakistani surnames. Other ethnic minorities remain a question mark.

3. It doesn’t apply to government-friendly media outlets.

4. It doesn’t apply to anyone now, because the Department of Justice (sic) has lost interest.

Having tried to get the Department interested in this topic before, without success, I am putting most of my money on number 4. Readers may feel this is a matter which does not concern them. After all mainlanders or Pakistani hawkers accused of serious crimes may be guilty. And this is something which is not likely to happen to us personally. This is too complacent. The erosion of legal rights always starts with the despised — suspected criminals, ethnic minorities — but it will if left unchecked get round to the rest of us in due course. The price of freedom, as Thomas Jefferson apparently did not say, is eternal vigilance.