Duncan Lamont is a media lawyer at Biddle & Co.
Sir Robert Peel summed up the establishment view of the public's right to know in the last century. He said: "Public opinion is compounded of folly, weakness, prejudice, wrong-feeling, right-feeling, obstinacy, and newspaper paragraphs." Little has changed, at least in some quarters.
The law of contempt tries to strike a balance between the right to freedom of reporting and the right to a fair trial.
The media has long considered itself free to report what is said in the Criminal Courts so long as coverage is fair and accurate. But Oxford Crown Court judge Harold Wilson recently told journalists he saw the reporting of the opening prosecution submissions, in the trial of a 16-year-old schoolboy accused of robbery, as a possible contempt. He said: "What is opened to a jury is not evidence and I would regard it as unfortunate, to say the least, and it may well be contempt, if what was opened was reported."
It is right that trials should not be influenced by the press, but it underestimates the common sense of juries if judges believe they will be swayed by a newspaper resume when they heard the original.
This sensitivity towards possible prejudice to a jury was seen in Orders granted before Kevin and Ian Maxwell's trial restricting media (and musical) comments upon the activities of the late press tycoon, Robert Maxwell.
Although dead "the bouncing Czech" was also indicted. But the jury was able to put to one side any knowledge of his pensions plundering because they acquitted the defendants.
Refreshing judicial common sense over the perceived power of the media to prejudice trials was shown in Attorney General v Independent Television News & ors (1995). The Divisional Court decided an ITN news item and reports in early editions of tabloid newspapers, were not contempts, as they were published far in advance of a likely trial date. Any risk of prejudice (the revelation of a previous conviction) would have faded and was no longer "substantial".
The Contempt of Court Act 1981 says it is not a contempt to publish fair and accurate reports of open legal proceedings contemporaneously and in good faith. Therefore, the reporting of the prosecution's opening of trials, no matter how salacious, should not be stifled and lawyers advising media clients should stand firm against judicial criticism.