A lot of human rights law is concerned with deciding on the balance that can lawfully be struck between an individual’s right, on the one hand, and the interests of other individuals or the wider community, on the other. (Eg does my “right to protest” entitle me to lie in the middle of a busy road, even if that causes traffic gridlock and so huge inconvenience to other people?) Striking this sort of balance can be a delicate matter – and this is particularly so if the two things in tension with one another are both fundamental rights.
This article in the Guardian provides an example of such a situation. It reports on an injunction issued by a judge hearing a murder case arising out of last August’s riots in Birmingham. The injunction prevented the broadcast (during the trial) of a BBC documentary about the riots. The judge thought that jurors might be prejudiced – in other words, liable to look at the case differently – if they watched the programme, even though it did not refer specifically to the Birmingham riots. Quite rightly, the judge thought that the jurors should decide the case only on the basis of the evidence presented in court, not in the light of other information contained in the documentary. But was the defendants’ right to a fair trial sufficiently important to justify banning the broadcast (and so limiting freedom of speech)? (The BBC thought not.) In particular, was a complete ban on broadcasting the programme – as opposed, say, to a direction forbidding jurors from watching it – a proportionate restriction on free speech?