Trial phase

The trial begins after the pre-trial investigation is completed and sufficient evidence is collected in support of the indictment. The principle of publicity is the dominating principle during the trial phase as maintaining the secrecy of investigation is no longer needed. At this point, it is allowed to disclose the defendant’s identity. In fact, the publicity of trials is one of the safeguards of the right to fair trial. Thereby, court hearings are usually open to both the public and the media. Everyone, including journalists, can be present in the courtroom. However, there are certain rules that should be followed in order to preserve the fairness of the process. Despite the principle of publicity, it is still necessary to respect the presumption of innocence until the verdict is pronounced, and to protect the right to private life of defendants, their families, and other persons involved in the proceedings. 

In some exceptional situations, confidentiality rules may also apply at the trial stage. They may affect the whole trial or individual court hearings. Common grounds for confidentiality are, for instance, the disclosure of a state secret or the involvement of a child. Usually, national law provides the specific circumstances that require the holding of court hearings behind closed doors. In many countries the court is also authorised to restrict the publicity of certain trials. In such cases, the media cannot be present in the courtroom although they can usually access to the other court premises (including the way to the courtroom).

Regular provision of information

Media coverage of court proceedings is essential for sustaining the principle of open justice. To achieve the goal that justice must not only be done but must be seen to be done journalists should have equal access to public court hearings, including those at which the decisions of the court are delivered. Information about scheduled hearings, indictments or court decisions as well as any other information facilitating the reporting of cases should be made easily accessible, for example on your institutional website or social media profile. It is a good practice to establish a simplified access to information procedure for the media to facilitate communication and avoid misinterpretations.

Public statements by public authorities

Public references to guilt are prohibited during the trial as they are during the other stages of the proceedings. At all times, as a public official you are required to use unbiased and impartial language. Provide only factual information and avoid expressing personal opinion, especially regarding the guilt of a suspect or accused person, no matter whether you believe that there is sufficient evidence against the person. Bear in mind that the media may and most probably will cite your words not only when you make public statement, but also when you talk informally with journalists. When speaking unofficially and off the record, it is advisable to speak as if you are being recorded.  

Even more caution is needed when you are making statements in your personal capacity. You should avoid revealing information or commenting on the pending criminal cases you are working on. Ideally, your online presence should not be used for job-related posts and should not reveal details of your work. Otherwise, there is a risk that your personal opinion is associated to the institution or authority you work for.

Presentation of detained persons during the trial

Courts in many countries apply measures of physical restraint to defendants such as handcuffs, glass boxes, cages and leg irons. Indeed, it could be justified for safety reasons, but you should be mindful for the impact of the visual presentation of the person. Pictures of physically restrained individuals may convey the impression of criminals in the eyes of the public. In general, it is recommended to hold defendants handcuffed or in cages during open hearings only as a measure of last resort. Studies suggest that such visual presentation may build an image of guilt, which goes against the presumption of innocence. It is therefore advisable to avoid restraining the defendant, unless it is absolutely necessary, especially if the media are allowed to take photographs inside the courtroom. Bear in mind that once such images go online, they are usually re-posted multiple times, which makes their complete removal nearly impossible, even after the case is closed.

The members of a famous punk band were held in a glass box during the whole trial for committing a crime of hooliganism

The three defendants, women aged under 30, were prosecuted for hooliganism for performing a protest song against a government leader. They were placed in pre-trial detention and, during the trial, they were held in a glass box surrounded by police guards and court ushers.

The case was brought to the European Court of Human Rights which condemned the national authorities for violating the fair trial rights of the defendants. The Court defined as “degrading treatment” the placement of the three women in a glass box and being constantly exposed to public view through national and international media.

Sustaining the impartiality of judges

If you are a judge of a criminal case that has attracted the public and media attention, extra efforts are needed to preserve the impartiality of the court. By law, judicial decisions must always be based on the judge’s professional and impartial assessment of the evidence presented during the court hearings. However, many studies suggest that in practice judges may be affected, usually unintentionally, by the public opinion. The high publicity surrounding a criminal case often triggers public pressure on the court. This pressure can have different manifestations from public statements of influential persons to public petitions and even demonstrations. In such cases, you may feel compelled to rule according to the public expectations. It is of utmost importance, however, to always observe principles of the presumption of innocence and the impartiality of the court. It is recommended to limit your exposure to the media, especially in terms of personal appearances, and not to follow the media coverage of the case. Reading comments on social media and other online platforms allowing users to express opinions and discuss the case, should also be avoided until the case is closed.

Photographs, audio and video recordings in courtroom

As a journalist, you are responsible to guarantee the openness and public scrutiny of the courts. The principle of publicity of the trial poses both the right and the duty of the media to attend court hearings and report on court proceedings.

Taking notes in writing is the traditional way. Using technical means of recording in the courtroom is also permitted, but should be carried out in compliance with several rules. Photographs, video and audio recordings in the courtroom are appropriate only with the consent of the presiding judge. It is recommended to send a timely request to the respective court. If you have been granted a permission, it is important to know that recordings should begin after the panel of judges enter the courtroom and open the hearing. Usually, broadcasting live from the courtroom is forbidden unless other instructions are announced in some extraordinary situations, but always with the explicit permission of the presiding judge. Keep in mind that the persons participating in the hearing (parties, witnesses and other participants) can file an objection to be recorded or their faces to be visible on photos and videos. If so, they should not appear or have to be dully anonymised.

Ethics require to be cautious and compassionate to the family and close people of the defendant. Their mental health is likely to be weakened by the stress caused by the criminal proceedings alone. The media attention could amplify these negative effects. You should approach cautiously the family of the accused person and respect their privacy. Photographs, audio and video recordings without their prior consent is forbidden.

In many countries, measures for physical constraint as handcuffs, glass boxes, cages and leg irons are commonly used in courtrooms for safety reasons. It is highly recommended to avoid publishing visual materials where the accused appear as a subject of physical restraints. The visual impact is powerful to shaping the public opinion, including to forming prejudgments on one’s guilt.

Photographs, audio and video recordings outside the courtroom

If the media is not permitted in the courtroom, media crews are usually able to attend the court premises and to shoot materials before and after the hearing. You should wait at the space specifically designated for the media, if there is one.  Avoid taking pictures and recording videos of handcuffed defendants, or if they are accompanied by police or judicial officers on their way to and from the courtroom. In general, the defendant should not be presented in disgraceful manner and you should always be mindful of the impact of visual presentation.

Avoid and prevent the creation of parallel judgements

Parallel judgement is defined as a collection of information and news accompanied by a more or less explicit opinion on a matter, that could be the guilt of a defendant. Usually, two processes take place simultaneously when a criminal case is highly covered by the media – an official one in the courtroom, and an informal one in the public domain. While there are certain rules regulating the trial proceedings, the public discourse is guided and influenced by the media without explicit restrictions. The flow of information and public discussions are facilitated by online platforms (news websites, forums, online media, and social networks). The online environment has created another layer of responsibility to the media practitioners. It is interrelated to the emergence and growing importance of the phenomenon trial by media. The term describes the influence of media on criminal proceedings, and is evolving along with the dynamics of mass media and social networks. It is problematic as the public opinion is formed through the prism of the media, which can cause pressure on the court (represented by human beings – judges and jury) to rule according to the popular opinion. Biased media publications, expression of author’s personal views, and the use of offensive language are able to create public expectations for a certain verdict (conviction or acquittal) and to interfere the conduct of a fair trial.

Access to evidence

The principle of open justice envisions that evidence is no longer confidential and materials are presented to all the participants in public hearings, including the journalists. However, usually you will have partial access to evidence that is presented during the hearing limited to extracts of documents and physical evidence presented by the parties. You are allowed to report to the public all the evidence that was made available. The reporting should be done in objective manner and expression of opinions and premature judgements on one’s guilt should be avoided.

Positive practice

Media was given greater access to court files to prevent publishing inaccurate or misleading information

The increased prevalence of social media and the ability for people to post inaccurate or misleading messages on social media in relation to court disputes is concerning. As a result, new rules were introduced in Ireland, in 2019, seeking to regularise media access to court documentation and social media commentary during ongoing proceedings. The aim is to minimise the dissemination of inaccurate information during an ongoing trial by an untrained and unregulated member of the public 

Thus far, access to documents was not provided and so reporting was limited to information contained in extracts of documents that were actually read out in court. 

Under the new rules: 

    • Accredited journalists can request access to documents that have been opened or are deemed to have been opened during a court hearing. This creates the responsibility of lawyers to ensure personal or commercially sensitive information is not unintentionally referenced in proceedings and published in the news. 
    • Only lawyers and accredited journalists can use ‘text-based communications’ including social media updates during court hearing.

Source: ByrneWallace LLP