A.J. Nicholson, Contributor

The saying in Jamaica that, 'fus' wud go to law' runs deep in our society. Recently, there has been an unwelcome development concerning the massive prejudicial pre-trial publicity that is activated, particularly in relation to certain kinds of legal matters, often even before any charge has been laid.

We are obliged to contemplate this development and to agree on certain rules, lest we do irreparable damage to one of the pillars on which the integrity of our society stands. This pillar is the presumption of innocence.

As far back as the Green Bay matter, there were complaints in this regard. Today, much concern is being expressed, for example, as to how the Kern Spencer and the Carlos Hill issues have been handled, so far.

The trend is unfortunate and it is one that we cannot afford to ignore. For it brings into sharp focus the tension that exists in all democracies between the freedom of expression that the press enjoys so that the people may be meaningfully informed, on the one hand, and the protection that is afforded to persons who are under investigation or accused of criminal wrongdoing, on the other.

These two principles are enshrined in the same chapter of our Constitution. Like all the rights enumerated in that chapter, however, there are obligations and responsibilities that must be taken into account if the balance and the integrity of the just society are not to be compromised.

Defined geographical space

Jamaica, like any other society, consists of people who live together in a defined geographical space, and for the smooth running of the society, certain rules have been agreed on and, put in place. These rules speak both to rights and responsibilities and if the one is observed and addressed in a manner that leads to the detriment of the other, the balance is upset. Taken to its logical conclusion, that is the type of activity that leads to an undisciplined, ungovernable society.

Stripped to the core, these rules and principles are based on the biblical injunction to "do unto others as you would have them do unto you". So that, in as much as I have rights that you have a responsibility to respect, you equally have rights which I am obliged to respect. That is fair and equitable, because it keeps the balance that is necessary for the preservation of the just society.

Presumed to be innocent

One of these rules is that every person who is charged with a criminal offence is presumed to be innocent. The lawyers say that such a person is "clothed with the presumption of innocence". This kind of presumption is one that is rebuttable: the clothing of innocence may be removed.

It should be removed, however, only by the application of certain other rules and through certain defined channels. For example, that clothing of innocence should only be removed through the channel of a competent tribunal - a court of law. And, another rule that must be applied is that that cover may only be removed by evidence that is given in that court of law.

Of course, there are other rules such as those concerning who should provide the evidence and who should prove the case against the person. If, then, the protection is removed through that channel and by the application of the relevant rules, the person is then, and only then, to be declared guilty.

A crucial requirement, therefore, is that nothing should be done, before that pronouncement of guilt in a court of law, which could lead the public to a view that the clothing of innocence has been removed.

This places a special responsibility on certain powerful organs and institutions in the society to be circumspect in their approach to comments that are made in the public domain before a matter is fully aired in a court of law. And numbered among these entities are the Parliament, the press, the executive and the security forces.

Wide open eyes

Media personnel, in particular, have to approach their tasks in this area with their eyes especially wide open and cast in several directions. There must be the concern that they will be used, by people with agendas, as a conduit for a "media trial" before the matter is ventilated in court.

They have to be careful, moreover, that, unwittingly or consciously, they do not facilitate the exposure of these matters in such a way as to lead to an inference of guilt in the eyes of the public. Potential witnesses, for example, being interviewed at length on radio can lead the public to a settled conclusion that may be completely different if those same witnesses are heard giving evidence under the required rules in a court.

The real danger, of course, is that the conclusion is left to simmer and to concretise in the collective discussion to the extent that if another conclusion is arrived at in a court of law, the public is led to ask: how come?

And since the deep impression left by the interviews persists, the person who is found not guilty in a court of law remains prejudiced. That is not fair and equitable as far as he is concerned. His right to the presumption of innocence would have not been guaranteed and protected by all others in the just society who have a responsibility to do so. "Do unto others ..."

We also bear in mind that prejudicial pre-trial publicity places an added burden on the persons who are to consider and weigh the evidence in court. It is true that a judge or jury members have to be mindful that, in coming to their decision, they ought not to make any use of what they may have heard in such interviews or, indeed, in any other setting outside of the court.

These judges already have a difficult task on their hands in having to assess the evidence that is presented in court. They should not be saddled with the additional burden of performing mental gymnastics of "forgetting" what has already been cemented in their minds.

Custody

Another creeping development in the administration of justice that must urgently be cauterised is that of the police taking persons into custody, charging them some time after, and, through the media, feeding information to the public concerning those persons, including information that may never be used in court. And all of this is done, days, weeks, months, at times, before the persons' legal representatives are given any particulars of the charge.

Often, that information is cemented in the minds of the public even before such a person appears in court for the first time. That is a dangerous course for the police to continue to pursue. And, the media must be careful that they are not used to facilitate such a dangerous trend which runs directly counter to the presumption of innocence.

In like manner, members of the executive must exercise good judgement in this regard, particularly in Parliament, lest they contribute to this kind of prejudicial publicity, sometimes even before a person is interviewed concerning a potential charge. The oath taken by parliamentarians enjoins them to be cautious, particularly in matters that touch and concern the constitutional rights of our citizens.

In all of this, I do not wish for one moment to suggest that press freedom should be stifled in any respect. I am mindful of the expansive nature of the media landscape that has come about in Jamaica, so that their duty to inform the public has been greatly enhanced. That enhanced ability to deliver information to the public carries undoubted responsibilities about the rights of others. The balance must be kept.

Public matter

And, I also fully appreciate that a crime is a public matter which itself disrupts the balance of the society. All persons, organs and institutions of the society, nevertheless, must be careful to disrupt that balance no further by the breach of cardinal rules which can do irreparable damage to the foundation on which the society rests.

What must always be remembered is that the person who has been so severely prejudiced has little or no remedy. The stain that such prejudicial publicity leaves can scarcely be erased. For the person who knows that he is innocent, this may be a stain that lasts for the remainder of his life, doing untold damage to him, his family and his acquaintances.

For the person who knows that he is guilty, regardless of the final decision arrived at in a court of law, he may feel that he has less to complain about. And, even though the rules relating to the presumption of innocence exist both for the protection of the innocent and the guilty, they have been put in place for the protection of the integrity and the strength of the just society and should remain closely guarded and constantly guaranteed.

Are these not principles and processes which the Broadcasting Commission of Jamaica and other watchdog groups should seek to protect and to guide, lest the true ends of justice be defeated.

EDITOR'S NOTE: The printer's imp was at work in Mr Nicholson's article published on April 27: The paragraph beginning, 'Jamaica Welfare was a force that propelled the exercise ...' should have had the names: N.W. Manley, D.T.M. Girvan and Philip and Hugh Sherlock. The names printed were: N.W. Manley, D.T.M. Grin and Philip and Hugh Cherokee. The errors are regretted.

A.J. Nicholson, an attorney-at-law is the Opposition spokesman on justice.