Media – trial by tabloid. Murder it wrote

Ronald Thwaites QC, of 10 King's Bench Walk, a member of the Defence Counsel in the trial of those charged with the murder of Stephen Lawrence, condemns the Mail.

“It has no record of campaigning on civil liberties issues, so this is indicative of an attempt to increase circulation. It can only be in a better position to comment on the case than anyone else if it has fresh evidence; the legal system requires fuel, that fuel is evidence, and in this case the evidence was missing,” he said.

“This case is a tragedy, but it is not so uncommon – there are legion cases where the culprit is a stranger to the victim, of those I would bet less than 10 per cent are caught and successfully prosecuted. The Daily Mail has picked on soft targets, there is no courage in that.

“If the Daily Mail is in earnest, it should fund the action, seek no costs, agree to have the case heard by judge alone, because a jury would be so prejudiced, and agree that the action be on the grounds that these five are proved or provable murderers.”

Nazir Afzal, CPS senior crown prosecutor and African Caribbean and Asian Lawyers Group committee member, stresses that his opinion is personal and does not represent the view of the Crown. He disagrees with the Mail's tactics because of the danger they will “prejudice further criminal action against the two that have not been acquitted or any civil proceedings against all five that the Lawrences may be considering”. But he adds: “I can understand why the Daily Mail took the action that it did. It has done nothing unlawful and it has added to the debate in the pursuit of justice.”

He suggests the Mail's action could be a “novel way of getting the five in the box to face cross-examination” given the high burden of proof and rules of admission of evidence in the criminal courts. “I understand the five are considering taking libel action. I think they would be foolish to put themselves through that.”

On Lord Donaldson's claim that the story was in contempt of court, Justin Walford, legal adviser to the Express Group, publishers of the Daily Express, says: “The Mail's piece cannot be in contempt of court under the Act, and cannot be in contempt of court under common law. If the Mail was held to be in contempt of court under common law, the matter would be whipped over to the European Court of Human Rights, under article 10. It is plainly defamatory, but newspapers are free to make any allegations that they wish and it is for the five to take proceedings. It is interesting that the Mail did not say: 'You have questions to answer, we would invite you to speak out.'”

David Eady QC, co-author of The Law of Contempt and a tenant at 1 Brick Court, agrees. “It is very difficult to see any contempt of court. The strict liability rule was meant to let journalists know exactly where they stood with regard to active proceedings. Although the common law of contempt has been revived in relation to proceedings which are imminent or contingent, this is only in exceptional circumstances such as Attorney General v Newsgroup Newspapers. In the 'rape doc' case, the Sun was carrying prejudicial reports about a doctor whose private prosecution it was funding. The courts ruled this made 'virtually certain' proceedings were imminent.”

Arthur Davidson, QC of Cloisters, former legal director of the Mirror Group, thinks “the Mail was right and Lord Donaldson was wrong”.

He says: “It seems to me that the five boys have availed themselves of all the safeguards of the law including access to the best criminal representation, the right to silence and the strict rules of evidence. What is left for the Lawrences? Maybe these actions will lead to witnesses coming forward.”

Makbool Javaid, former chair of the Society for Black Lawyers disagrees, despite expressing deepest sympathy with the Lawrences. “We supported the campaign for the Lawrences, and were highly critical of the prosecution authorities. But the Mail is setting a very dangerous precedent, which renders the rule of law meaningless. Another example I can think of is the Winston Silcott case where there were appalling headlines after his acquittal for the murder of a police officer. It just shows those who are powerful can choose to influence public opinion on their whims.”

Bruce Houlder QC, vice chair of the Bar Council's public affairs committee extends sympathy to the Lawrence family, but does not think “their plight is dignified by the Mail's campaign”. He says: “It must be remembered that Michael Mansfield QC, who conducted the private prosecution, conceded the evidence was insufficient. We should not conduct trial by newspaper. Opinions worth having are based on sound information. To increase circulation by pandering to misconception cheapens the dignity of the Lawrence family.”