In March 2013 three media houses, including iNews Cayman, were subject of an application from Cayman’s High Court for review to support a further application to stay proceedings against Jeffrey Alexander Barnes on three counts including rape.

The Defendant’s lawyer was claiming the adverse publicity contained in the three media houses stories could adversely affect his client.

One of the media houses, CITN/Cayman27, reported a story on 6^th March – the evening of the Defendant’s appearance in Court – that was incorrect.

It created the impression that at the hearing of the 6th March 2013 the Defendant had admitted to abducting and raping a 49-year old woman

It stated the Defendant had made a formal application to switch-his not-guilty plea to guilty. In fact the opposite was true. The Defendant was making a formal application to switch his guilty plea to not guilty.

It stated that the Court heard “the graphic details” of the case.  In fact the Court heard no such thing.

It stated the Defendant was due back for sentencing in this case in April, but the text made no reference to the Defendant now seeking to plead guilty, and if he were successful, a contested trial would take place.

It stated the Defendant was awaiting a forthcoming trial for a different sexual assault case at the end of the month.

The other two media houses, the Defence Lawyer claimed, presented material that was “highly prejudicial”.

Several of these news pieces referred to the Defendant as a “rapist” “sexual predator” and “sex fiend”, whilst, more often than not, placing the article beside a photograph of the Defendant.

Most of the articles appeared between late October and early November 2011, but

there were a few news pieces relating to his guilty plea and then his application  to

vacate the plea-, which appeared in October 2012.

The Director of Public Prosecutions (DPP) conceded that many of the news articles – particularly the ones in 2011 – were prejudicial, although the later articles were, in her view, more restrained.

Defence counsel submitted that the recent inaccurate CITN/Cayman 27 television article and news article on its website resurrects the earlier prejudicial Internet news articles published by two other media houses, to such an extent that the Defendant would have been unable to have a fair trial before a jury in this case.

The DPP disagreed saying that although the CITN report contained inaccuracies it did not include any emotive language or opinion.

Although conceding the other media houses did publish some articles that did present a risk of being prejudicial, especially the ones published in 2011, the DPP submitted almost 18 months had passed  “since those articles were published and the tone of the more recent articles in October 2012 and later is much more restrained”.

The DPP submitted the trial process could protect “the integrity of the jury and the risk presented by the spectrum of news reports is not so grave as to prevent the Defendant from receiving a fair trial”.

Justice Charles Quin, after quoting many relevant historical cases from other learned judges said:

“It is my view that the effect of the 2011 news reports, and more restrained news reports in 2012 will have been greatly diluted by the passage of time, so that there will be little, if any, residual prejudicial impact on the jury selected to hear this case.

“The Court understands that the Cayman 27 news report was aired on the evening of the 6th March 2013 and on the morning of the 7th March 2013 and further, that the same report stayed on the media house ‘s website until the 17th March 2013.

“Accordingly there has been a lapse of time of almost 3 weeks since it was last broadcast.

“I have decided to follow the English Court of Appeal decision in R v. Abu Hama and find that the fact that this broadcast on the other case was aired almost three weeks before this trial is no reason for not proceeding with this trial. I conclude that with the Court’s assistance it is still possible for the Defendant to have a fair trial.

“With considerable guidance from the Privy Council and the English Court of

Counsel the Court can take steps to ensure that the risk of any prejudice to the jurors selected will be reduced to a minimum.

“The Court can discuss with the DPP and Defence counsel the appropriate directions to be given before any evidence is heard and in the Judge’s Summing Up to the Jury.  For example, before any evidence is heard the Court can direct the jury to ignore anything they may have read, seen or heard and come to a verdict solely on the evidence, which they have heard in Court.

“The discipline of listening to, and thinking about, the evidence during the trial, in my view, will have a greater impact on the jurors’ minds that any possible residual recollection as might exist about reports about the other case in the media.

“In my charge to the jury I can include the standard directions, which will include

ordering the jurors to put out of their minds any form of speculation, and to concentrate exclusively on the evidence presented in the courtroom.

“Furthermore, there will be the most important standard direction to remove any feelings of sympathy for the Complainant or prejudice against the Defendant.

“It is my experience that Grand Court jurors follow the directions of the judges of this Court, particularly when those directions coincide with the submissions of both

counsel for the prosecution and the defence.

“It is my view that the trial process in the Grand Court can reasonably be expected to remove any prejudice and so ensure that the Defendant has a fair trial.

“For all the aforesaid reasons I do not find that that the risk of prejudice is so grave

that the trial process, along with the directions and instructions from the trial  judge, would  not be able to remove any risk of prejudice  and allow for a fair trial for the Defendant.”

END

Let the above be a warning to all of us in the media how very careful we must be.