A story of miscarriage: Law in the media

Journal of Law and Society

Volumn 31, Issue 2, 2004, Pages 221-244

  Nobles, Richard ^a   Schiff, David ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 2642525539     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2004.00288.x     Document Type: Review

References (74)

1. Research into the mass media has consistently reflected such perceptions of media reporting, as well as demonstrating its ideological bias (Glasgow University Media Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.), Hearth and Home: images of women in the mass media (1978)) and its characteristic inaccuracy and the extent to which it is misunderstood by its audience (A. Bell, The Language of News Media (1991) especially ch. 11, '(Mis)understanding the News').
2. Research into the mass media has consistently reflected such perceptions of media reporting, as well as demonstrating its ideological bias (Glasgow University Media Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.), Hearth and Home: images of women in the mass media (1978)) and its characteristic inaccuracy and the extent to which it is misunderstood by its audience (A. Bell, The Language of News Media (1991) especially ch. 11, '(Mis)understanding the News').
3. Research into the mass media has consistently reflected such perceptions of media reporting, as well as demonstrating its ideological bias (Glasgow University Media Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.), Hearth and Home: images of women in the mass media (1978)) and its characteristic inaccuracy and the extent to which it is misunderstood by its audience (A. Bell, The Language of News Media (1991) especially ch. 11, '(Mis)understanding the News').
4. Research into the mass media has consistently reflected such perceptions of media reporting, as well as demonstrating its ideological bias (Glasgow University Media Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.), Hearth and Home: images of women in the mass media (1978)) and its characteristic inaccuracy and the extent to which it is misunderstood by its audience (A. Bell, The Language of News Media (1991) especially ch. 11, '(Mis)understanding the News').
5. Research into the mass media has consistently reflected such perceptions of media reporting, as well as demonstrating its ideological bias (Glasgow University Media Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.), Hearth and Home: images of women in the mass media (1978)) and its characteristic inaccuracy and the extent to which it is misunderstood by its audience (A. Bell, The Language of News Media (1991) especially ch. 11, '(Mis)understanding the News').
6. Apart from the many explanations in media studies for media misrepresentation (see n. 1 above), there appears to be an underlying structural reason: 'Media offer a distinctive communication situation, involving a disjunction of place, and also often of time, between communicator and audience. This fracture in the communication process has significant consequences for the quality of communication. Centrally, the feedback that is an integral factor in individual spoken communication is delayed, impoverished, or lacking altogether in mass communication.' A. Bell, 'Hot Air: Media, Miscommunication, and the Climate Change Issue' in 'Miscommunication' and Problematic Talk, eds. N. Coupland et al. (1991) 259-82, at 263. The same study suggests the main cause of much media misrepresentation as that of 'the issue [being] too complex, reflecting a pessimism on the part of specialist sources that their information can be presented accurately in the public media' (p. 271).
7. Principally set out in N. Luhmann, Social Systems (1995, original German pub. 1984) and The Reality of the Mass Media (2000, original German pub. 1996).
8. Principally set out in N. Luhmann, Social Systems (1995, original German pub. 1984) and The Reality of the Mass Media (2000, original German pub. 1996).
9. R. Nobles and D. Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000) especially ch. 4, 'Into and out of crisis: a recent history of media reporting on miscarriages of justice'.
10. id., ch. 4(B), 'Constructing Crisis'.
11. Luhmann's characterization of modern society as functionally differentiated contrasts with theories of modern society as stratified. 'A societal system that is vertically differentiated according to the principle of stratification presupposes that societal differentiation is directed by kinds of persons, by their "quality", by their determination to live in specific castes or ranked groups. By contrast, with the transition to functional differentiation, the schematic of differentiation is chosen autonomously; it is directed only by the functional problems of the societal system itself, without any correspondences in the environment' (Luhmann, op. cit. (1995), n. 3, at p. 193). 'The flood of enlightenment and the ebb of latency can presumably be reduced to a common factor: to a gradual replacement of the hierarchical orientation of the European societal system (and correspondingly of many particular social systems) by a functional one' (id., p. 341). For a clear statement of functional differentiation, with examples, see id., pp. 460-6. For a thorough statement of the implications of this analysis, see his 'Modernity in Contemporary Society' in N. Luhmann, Observations on Modernity (1998, original German pub. 1992) 1-21.
12. Luhmann's characterization of modern society as functionally differentiated contrasts with theories of modern society as stratified. 'A societal system that is vertically differentiated according to the principle of stratification presupposes that societal differentiation is directed by kinds of persons, by their "quality", by their determination to live in specific castes or ranked groups. By contrast, with the transition to functional differentiation, the schematic of differentiation is chosen autonomously; it is directed only by the functional problems of the societal system itself, without any correspondences in the environment' (Luhmann, op. cit. (1995), n. 3, at p. 193). 'The flood of enlightenment and the ebb of latency can presumably be reduced to a common factor: to a gradual replacement of the hierarchical orientation of the European societal system (and correspondingly of many particular social systems) by a functional one' (id., p. 341). For a clear statement of functional differentiation, with examples, see id., pp. 460-6. For a thorough statement of the implications of this analysis, see his 'Modernity in Contemporary Society' in N. Luhmann, Observations on Modernity (1998, original German pub. 1992) 1-21.
13. For Luhmann's classic statement of 'a theory of system differentiation that can be applied to society' see his 'The Differentiation of Society' in N. Luhmann, The Differentiation of Society (1982) ch. 10.
14. For a short statement of this theory, see N. Luhmann 'The autopoiesis of social systems' in Sociocybernetics; observation, control and evolution of self-steering systems, eds. F. Geyer and J. van der Zouwen (1986) 172-92.
15. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
16. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
17. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
18. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
19. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
20. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
21. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
22. Of course there has been a considerable amount of detailed research in studying this relationship: S. Chibnall, Law-and-Order News: An analysis of crime reporting in the British press (1977); S. Cohen and J. Young (eds.), The manufacture of news: Social problems, deviance and the mass media (revised edn. 1981); the three volumes of R. Erikson, P. Baranek, and B. Chan, Representing order: crime, law, and justice in the news media (1987), Negotiating Control: a study of news sources (1989), Visualizing deviance (1991); G. Barak (ed.), Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology (1994); P. Schlesinger and H. Tumber, Reporting Crime: The Media Politics of Criminal Justice (1994); D. Hunt, O.J. Simpson Facts and Fictions: New Rituals in the Construction of Reality (1999). However, we have not found Luhmann's systems theory utilized. Our own research suggests that it is of considerable value and has the potential to offer a more discerning analysis.
23. '... the term "mass media" includes all those institutions of society which make use of copying technologies to disseminate communication, This means principally books, magazines and newspapers manufactured by the printing press, but also all kinds of photographic or electronic copying procedures, provided that they generate large quantities of products whose target groups are as yet undetermined. Also included in the term is the dissemination of communication via broadcasting, provided that it is generally accessible ...' (Luhmann, op. cit. (2000), n. 3, p. 2).
24. id., p. 1.
25. The claim that most of our individual knowledge of social life comes from the mass media does not deny the possibility of acquiring knowledge outside of the mass media: we can learn from other experiences. But our ability to communicate our individual experience is restricted unless we communicate through the mass media. As soon as we do, we are forced to engage with the imaginary state of knowledge of an audience who will have obtained most of that knowledge through the mass media, and use our knowledge of what that knowledge might be, inevitably also obtained mostly through the mass media.
26. Luhmann, op. cit. (2000), n. 3, eh. 5, 'News and In-depth Reporting'.
27. However the context for this insight, as set out in much of the literature listed in n. 9 above, is of the role of the mass media in social control, in establishing and reinforcing particular themes about social deviance. The context of this insight in relation to Luhmann's systems theory is rather different, as this article will demonstrate.
28. 'The code of the system of the mass media is the distinction of information and non-information' (Luhmann, op. cit. (2000), n. 3, p. 17).
29. See nn. 6 and 7 above.
30. Thus, 'As a paradigm, the difference between system and environment forces systems theory to replace the difference between the whole and its parts with a theory of system differentiation' (Luhmann, op. cit. (1995), n. 3, ch. 1, 'System and Function', at p. 18).
31. 'Every selection, therefore, is based on a context of condensing, confirmation, generalization and schematization not found in the same way in the outside world being communicated about...' (Luhmann, op. cit. (2000), n. 3, p. 37).
32. id., p. 14.
33. The novelty of this detailed analysis of newspaper reporting is the comparison offered between the reporting and another authentic source of information, that of the Court of Appeal judgments. The method used required a preliminary reading of all the newspaper reports in order to identify prevailing themes, followed by a careful second reading in which a check-list of those themes was checked off as part of a substantially quantitative exercise, with differences noted.
34. 9/10 November 1999.
35. 2/3 October 2000.
36. 29/30 January 2003. A second appeal is only available after being referred back to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission; the referral was made in this case on 2 July 2002.
37. 11/12 April 2003.
38. Even eyewitness accounts must be communicated, which means that they can't be the same as the exterior happenings that they purport to describe.
39. J. Vasagar and R. Alleyne, 'Driven by drink and despair, the solicitor who killed her babies' Daily Mail, 10 November 2000.
40. 'Mother gave life and took it away' Glasgow Herald, 10 November 2000.
41. S. Bird, Daily Express, 10 November 2000.
42. M. Benattar, 'Solicitor killed two babies to keep looks' Newcastle Journal, 10 November 2000.
43. P. Byrne, 'Lawyer killed her babies' Scottish Daily Record, 10 November 2000.
44. M. Frith, 'Cot death or are some parents getting away with murder?' Birmingham Post, 10 November 2000. Despite their headlines ('Solicitor guilty of killing babies', 'Heavy-drinking lawyer guilty of murdering her two babies') the reports in the Guardian and the Independent are rather different. They do not move into postconviction mode, but retain the 'court heard' mode of reporting.
45. R v. Clark (Sally) 2000 W.L. 142, 1196, para. 63. The likelihood that he had not seen the bruises was remote (aside from the professional slur such a suggestion involves), as these bruises had led to his insisting on an observer to his autopsy. At the time of the autopsy, he had not known that the child was 'blue' when resuscitation was attempted. This fact made it less likely that these injuries could have been caused by resuscitation attempts.
46. The expert defence witnesses claimed that they would have given the cause of death as 'unascertained' (id., para. 77).
47. id., paras. 238-58.
48. M. Taylor, 'Mother did kill sons, say judges' Birmingham Post, 3 October 2000.
49. Sixteen out of 17. The Sun was content to report the Court's view that the new evidence would have made no difference to the trial verdict.
50. Ten out of 17.
51. S. Bird, 'I'll prove my wife didn't kill our sons' Express, 3 October 2000.
52. C. Milmo, 'Solicitor did kill baby sons, rules Court of Appeal' Independent, 3 October 2000.
53. R. English, 'Murder mother must stay in jail' Daily Mail, 3 October 2000.
54. 'Lawyer who killed her infant sons loses appeal against conviction' Glasgow Herald, 3 October 2000.
55. S. Whittingham, 'Mum did murder 2 babies, rule judges' Sun, 3 October 2000.
56. Of course, the oddity also raises some possibility of innocence as well.
57. These too have a possible double meaning - they only relate to innocence if one assumes that a husband would not show blind loyalty to a wife he believed to have murdered their infant children.
58. The substantive appeal followed a preliminary court hearing and judgment about whether fresh medical evidence could be introduced at the appeal, which preliminary judgement is only reported on in one national and one regional newspaper.
59. She claimed during questioning that one of the babies had died in a baby chair in a position that was not physically possible. Later she refused to answer questions. Then at trial she gave evidence that the child had not died in the chair.
60. The defence statistician wanted to introduce the general probability of a woman committing a double murder of her children to balance against the 73-million-to-one statistic (if this is what it was) of innocent double SIDS deaths.
61. Clark, op. cit., n. 32, p. 131.
62. Thirty-two newspapers include 80 items on this, although some of these items in the same newspaper are quite repetitive.
63. See their website: 〈http://www.sallyclark.org.uk〉.
64. 〈http://www.ccrc.gov.uk/latesmews〉.
65. Whilst her professional status as a solicitor does not disappear, its prominence diminishes. Instead, both in headlines and opening statements her description is more usually simply that of a mother, a status that more of the readership can identify with.
66. R v. Clark (Sally) [2003] E.W.C.A. Crim 1020.
67. [2002] 1 Cr. App. R. 34.
68. See n. 51 above.
69. Clark (Sally), op. cit., n. 53, para. 2.
70. id., para. 178.
71. id., para. 171.
72. Fourteen newspapers include an item on this.
73. Clark (Sally), op. cit., n. 53, para. 171. Another frequently used quotation from the same paragraph of the judgment was: 'In any event, we would have taken a great deal of persuading that on the state of the evidence as we now know it to be, any jury could properly have been sure that either or both of these children were murdered.'
74. A situation Luhmann calls 'irritation'.