Sunday, January 19, 2014

Open Justice: Must the Names of Soldiers Acquitted in a Court-Martial be Made Public?

Royal Courts of Justice
On December 17, 2013, the Divisional Court of the Queen's Bench Division made public the final version of its judgment in R. v Marines A-E [2013] EWCA Crim 2367, holding among other things that the names of two Royal Marines who had been acquitted of murder had to be made public. Mr Justice Holroyde, dissenting in part, noted that "if the necessary balancing exercise had been conducted, the judge in my view could legitimately have concluded that the [European Convention on Human Rights] Article 8 rights of Marines B and C (who had been found not guilty of any crime) should prevail over the Article 10 right of the media (who had been able to report the trial in full, and are now able to name the convicted murderer). Thus the failure to address the balancing exercise was a serious error. I would therefore have quashed the order in relation to Marines B and C and remitted their cases to the judge to conduct the balancing exercise." In an ironic twist for a case having to do with (and strongly affirming) the principle of open justice, the majority took umbrage at the fact that the draft judgment provided to counsel had been disseminated: "We made our decision in this case available before we handed it down. It was communicated far more widely than we had permitted. It is of the utmost importance that those to whom draft judgments are provided abide by the terms on which they are provided: see CPS v P [2007] EWHC 1144 (Admin). A court will always take a very serious view of any breach. It will treat it as a contempt of court with the penal sanctions that apply." Query: when, if ever, should the names of the accused in a public trial by court-martial be kept out of the media?

1 comment:

  1. Me says, if we really want to uphold the principle that Justice must be blind, balanced and impartial, then it would be a rare happenstance. At its core there is an apparent contradiction between having a 'public trial', as it should be, and keeping the names of the accused out of the media. Be that as it may, any decision to ban publication of the names or pictures, or both, of the accused whether its effect is to be temporary or permanent belongs to the presiding judge and necessarily. That decision, however, must be subject to appeal by any interested party.


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