Weighing Public's Right To Know

CBS's London-based correspondent Richard Roth writes for CBSNews.com on essential differences between Americans and Brits on the idea of the public's "right to know."

George Bernard Shaw famously described the United States and Britain as "two nations separated by a common language." In the wake of the London bombings, and the criminal investigation and judicial process that have ensued, it's also seemed as if they're two nations separated by a common legal system.

For example, we've learned much of our information about the July 7 bombs and bombers from leaks – and even a police briefing – in the U.S.; British authorities have been mostly silent on such details.

Part of the reason is cultural. In much of official Britain there's an assumption that if the public doesn't have a need to know, then it needn't be told. Part of the reason involves police work: for investigators, information known only to them – and the criminal – can be a valuable tool for trapping a suspect. But a major reason why information tends to flow freer in the U.S. than in the U.K. lies in the law.

Despite their shared foundation in common law, there are sharply divergent views and practice in America and Britain on what the public is entitled to know about crimes, criminals and the justice system; in particular, where the line gets drawn between a defendant's right to a fair trial – and the public's right to know.

At the extreme, media free-for-alls that surrounded the prosecutions of O.J. Simpson and Michael Jackson have been seen here as illustrations of the U.S. system gone awry. When evidence and legal strategy are topics for comment outside the courtroom; when lawyers and witnesses talk to the press; and when reporters write about all this in detail, commenting on the strength of the case and even speculating on the jury's demeanor – the British have always argued that justice suffers.

In Britain, under the Contempt of Court Act 1981, newspapers and broadcasters can be prosecuted for publishing anything that might "create a substantial risk that the course of public justice will be seriously impeded or prejudiced."

In practice, once an arrest warrant has been issued, the law amounts to a gag order on the press. In trial coverage here, the cue to the reader or listener that a reporter is operating under restrictions comes at the end of the story, with the words, "the case continues."

In effect, that means, "I know a lot more about what's going on here, what the evidence really shows, what the lawyers are trying to establish, what the defendant's alibi will be – but I can't share it with you until it comes out in testimony or the trial's over."

The idea is to ensure that jurors will be able to hear and evaluate the evidence free of any outside interference; that only what's said and shown in court will count. In America, jurors are cautioned not to discuss their case or read about it or watch reports about it on TV; in rare cases, juries are sequestered. The press, though, is mostly unfettered.

In Britain, jurors receive similar cautions about what they may read or listen to or talk about – but in addition, the press is restricted in what it can report.

In the past month, though, the grumbling's gotten louder here that Britain's system hides too much of what the public ought to know under an unnecessary blanket of secrecy. Heather Brooke of a British organization called, "Your Right to Know," (www.yrtk.org) recently wrote:

"Like most Londoners, I have listened to weeks of sirens screaming by my flat. Last Thursday, I found myself confronted by 20 police officers as I entered Tottenham Court Road Tube station. I've seen armed police in London and wonder about the details of their new 'shoot-to-kill policy'. The police are certainly not telling me what's happening, so I, like every other citizen in this pseudo-democracy, get my information from the media."

She accused police and judges of wanting to "stifle this lifeline of information" by their strict interpretation of the Contempt of Court Act, though she added:

"Where empirical studies have been done in the US and New Zealand for instance, where there are no such contempt of court laws, the evidence is overwhelming and all points in one direction: media exposure has no effect on a juror's decision and, in fact, jurors are remarkably able to put aside what they have seen or heard about a case." (The Independent, Aug. 3, 2005)

What's fuelled the frustration is the fact that while the law still respects national borders, the news media do not. International broadcasters and the internet mean that what's published anywhere is published everywhere. It's possible for British prosecutors to pursue foreign media for violating the Contempt of Court Act, but hugely problematic.

Moreover, the culture that supports it seems to be changing. Journalist Andrew Neil recently observed that who the Act really holds in contempt are the jurors – by putting too little faith in their ability to sift the evidence and filter out the irrelevance.

By Richard Roth