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In 2003, in the aftermath of the trial of Ian Huntley and Maxine Carr for the murders of Holly Wells and Jessica Chapman the Attorney General Lord Goldsmith referred to the media’s reporting prior to and during the trial as ‘frankly unacceptable.’ 1 In December 2006 in a Radio 4 interview he said:
“I think the time has come to ask the media, to urge the media, to exercise restraint in the reporting of these events, though…it is for them to take their own legal advice.2
Alun Jones QC wrote to the Times newspaper in September 2008 and posed the question ‘has the law on contempt ceased to apply to the media?’3 The then Attorney-General Baroness Scotland responded by saying that her office would brings prosecutions against the media if the facts warranted such action being taken.
The issue at the centre of these comments and questions is to be found in the Contempt of Court Act 1981 and in particular the strict liability rule contained in section 1 of the Act. This states that conduct will be treated as a contempt of court if it tends ‘to interfere with the course of justice in particular legal proceedings regardless of intent to do so.’ The objective of the legislation is to avoid what is generally referred to as ‘trial by media.’ In this country every person charged with a crime is presumed innocent until the opposite conclusion is reached as a result of a properly conducted trial before magistrates or a jury. Article 6(2) of the European Convention on Human Rights also guarantees that common law principle. Article 6 (1) states that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
The assumed difficulty lies with jury trials. Major criminal offences are tried at Crown Court in front of a jury. The expectation is that jury members will reach decisions based solely upon the evidence they have heard in court. They should not be influenced in any way by publicity about the accused gleaned from media reports prior to the trial or even media reporting during the course of a trial.
It is in fact impossible to know whether juries are actually affected by pre-trial reporting as section 8 of the Contempt of Court Act makes it an offence to attempt to discover information from jury members as to how they reached their decisions. So the law proceeds upon an assumption that jurors are likely to be influenced by high profile media reporting.
The provisions of the 1981 Act ‘kick-in’ once proceedings are deemed to be ‘active.’ In practice this means when a warrant has been issued for a person’s arrest, there has been an arrest or the person has been charged with an offence. Once proceedings are active the media is expected not to publish anything that ‘…creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.’4The most obvious example is that any previous convictions of the defendant should not be made known to the public.
The issue has been highlighted by two cases that have reached the courts in 2011. In March the High Court delivered its judgment in Her Majesty’s Attorney-General v. Associated Newspapers Ltd and News Group Newspapers Ltd  EWHC 418 (Admin) and in July in Her Majesty’s Attorney-General v. MGN Ltd and News Group Newspapers Ltd  EWHC 2074 (Admin).
The former case introduced a new dimension to the application of the contempt principles in that it is the first case in England and Wales to consider whether a publication on the online websites of two national newspapers amounted to contempt of court. The facts are very straightforward. The publication related to a murder trial. At 5pm on the first day of the trial the Mail Online website carried a photograph of the defendant holding a gun. It was on the site for nearly five hours. Any jury member searching the web that evening for news of the trial in which they were participating may have come across the photograph. The photograph which was being used to accompany a report of the trial should have been cropped to show only the head and shoulders of the defendant. The uncropped photograph also appeared on the Sun newspaper website in the early hours of the next morning and for the rest of the day. In fact none of the jury members did see the photograph and the trial proceeded as normal. Nevertheless the Attorney-General brought contempt proceedings against the newspapers.
The latter case related to the publicity surrounding the arrest of Chris Jefferies the landlord of Joanne Yeates whose body had been found on the outskirts of Bristol just before Christmas 2010. It will be recalled that Jefferies was completely innocent of any involvement in her death and another man has confessed to her killing. So unlike the first case this one did not involve any proceedings against the person arrested. Nevertheless action can be taken in respect of any publication after proceedings become active-in this case once Jefferies had been arrested. The following are examples of the reporting in both the Daily Mirror and the Sun:
The Sun carried a headline on the 1st January 2011 after Jefferies had been arrested saying that he was “Obsessed by death.” There was a report that a former acquaintance stated that she felt she was being followed by him. The thrust of the story was that he liked blondes and Joanne Yeates was also blond. The Mirror ran a story saying that Ms Yeates killer may have been waiting for her in her flat yet there was no sign of forced entry. The implication was that someone had a key and the obvious person was her landlord. The Attorney-General submitted that additional Mirror reporting:
a) Implied that Mr Jefferies was a sexually perverted voyeur who spied on his tenants in their bedrooms and elsewhere;
b) That he was a friend of a convicted paedophile guilty of very serious offences and
c) That the police regarded him as a prime suspect for the murder of another young woman in Bristol in 1974. Her body was found in the grounds of Clifton College were Mr Jefferies was working at the time.
In each case the court found the newspapers in contempt. In the former case the newspapers were fined £15,000 each and in the latter the Mirror was fined £50,000 and the Sun £18,000. The figure of £50,000 against the Mirror reflects the gravity of the offence. The previous highest penalty for contempt by the media was £75,000 imposed on the Sunday Mirror in 2002.
So what principles can be gleaned from the cases? It must be remembered that it is up to the respective media outlets to decide on how far they can go in order to stay within the provisions of the Act.
- First it must remembered that the offence is one of strict liability. This means that the Attorney-General does NOT have to show that the media through its reporting intended to prejudice legal proceedings.
- Secondly as the Jefferies case shows there is no need for there to actually be legal proceedings pending. What is being considered the whether at the moment of publication the articles or pictures or both created a substantial risk that any future proceedings might be seriously prejudiced. [See also the Attorney-General v. Express Newspapers EWHC 2859 (Admin)]
- Crucial to making a final decision is the meaning of the word ‘substantial’ in section 2(2) of the Contempt of Court Act. In the Associated Newspapers case the court stated that there was no shortage of judicial paraphrases as to the ‘…degree of risk or the degree of impediment or prejudice which the Attorney-General must prove.’
- The court cited with approval Lord Diplock’s statement in Attorney-General v. English 1AC 116 at 141H-142C. The word substantial was described as being ‘…intended to exclude a risk that is only remote.’Auld LJ commented in Attorney-General v. BBC  EMLR 76 that the threshold of risk is not high but must be proved to be simply more than remote or minimal.5
- Others factors to be considered include the likelihood of jurors having seen the material and the length of time between seeing or hearing the material and the commencement of the trial. This latter point is referred to as the ‘fade factor’ or as Moses J said at the Huntley and Carr trial that there would only be a ‘general recollection’ of the published material in jurors’ minds.
- It should also be noted that jurors are given an explicit instruction at the start of a trial not to surf the internet to look for information about the trial and the defendant. However the court in the Associated Newspapers case recognised that jurors do gather much of their news online and therefore cannot be legally banned from using the internet. In such circumstances they may come across prejudicial information inadvertently.
The reporting of Mr Jefferies arrest and his subsequent vilification at the hands of the media was reminiscent of the reporting prior to the Huntley and Carr case. It seems the media has not taken on board the criticisms voiced in 2003 that led to the court having to impose a postponement order upon the media under section 4(2) of the Contempt of Court Act and the trial date delayed for some six months. The imposition of a £50,000 fine on Mirror Group Newspapers would appear to be a warning from the courts that the media needs to be more circumspect in its reporting particularly in potentially high profile criminal cases.
Duncan Bloy and Sara Hadwin have just published the new 2nd Edition of Law and the Media (Sweet & Maxwell, 2011).
1 Law for Journalists Conference November 2003
2. Radio 4 December 21st 2006
3. September 10th 2008
4. Contempt of Court Act 1981 s.2(2)
5. See  EWHC 418 at paragraph 22