Media - trial by tabloid. Jury out on Mail's 'lynch-law'

"The Daily Mail today takes the unprecedented step of naming five young men as murderers." So began the Valentine's Day edition, February 14 1997, under the headline "Murderers", with the challenge that if the newspaper was wrong the accused should sue the publishers for libel.

This exceptional step on the part of the most popular of the mid-market tabloids was prompted by the verdict of an inquest jury that black teenager Stephen Lawrence had been unlawfully killed, the victim of "a completely unprovoked racist attack by five white youths". The Mail named the five, despite the fact that they had not been convicted of any crime and criminal prosecutions against them had all failed because of a lack of evidence.

The cover of the Mail, which included pictures of each of the five accused, caused a storm in the media. Journalistic opinion was, largely, behind the editor, Paul Dacre. Paul Foot, contributor to Private Eye, believed that it was not normally right for people to be subject to a media witchhunt but said that in this instance "the legal process had run its course, and the case against these men was overwhelming". He contrasted the Mail's campaign with that of its stablemate, The Mail on Sunday, against Colin Stagg (acquitted of the Rachel Nickell murder), which he condemned as "typical gutter, attention-seeking journalism".

Peter Preston, former editor of The Guardian, believed the Mail's coverage to be a tad melodramatic but "a valid way of expressing extreme anger at the state this case has been left in". According to The Observer, Dacre's attack was an uncharacteristic act brought on by the fact that Stephen Lawrence's father had done some plastering work in Dacre's house!

Andrew Marr, editor of The Independent, said he gave an admiring gasp when he read the article but concluded that Dacre was wrong.

Keith Richmond, assistant editor of Woman's Own, was forthright in his support for the Mail campaign: "Contempt of court? The courts have shown nothing but contempt for Stephen Lawrence, his family and his memory. The Mail was brave and the Mail was right. The five men the paper named on its front page are allegedly murderers and if the court won't convict them then it is the duty of the press to campaign against those who are guilty just as, on other occasions, it campaigns for those who are innocent."

But praise from the media was not matched by support from the Establishment.

The Attorney General is to consider whether the Mail has committed contempt of court, prompted by claims by Lord Donaldson, former Master of the Rolls, that there had been a common law contempt.

To Lord Donaldson the newspaper had "without doubt" interfered with the course of justice and he called, on Radio 4's Mediumwave, for the Attorney General's intervention.

Lord Donaldson hoped that the matter would be brought before the courts at the earliest possible opportunity "in order that the courts may consider whether this is a gross contempt". His belief was that there might be a contempt of common law because there was clearly no offence under the Contempt of Court Act 1981, as proceedings were not active. He did not, perhaps, consider whether his own firm views might have the effect of interfering with the course of justice.

As media author Andrew Nicol QC has pointed out, too many decisions on contempt treat "the public interest" as synonymous with "the interests of those involved in the legal process", thereby imposing censorship without regard for the benefits of a free flow of information about what happened in courts or inquests.

Should the Lawrence family bring civil proceedings against the five, as they threaten, they will face legal hurdles but, in Scotland, an action in a similar case proved successful. Francis Auld was accused of murder but the jury's verdict was "not proven" (not an option in England). The victim's Scottish family sued and were awarded £50,000 damages for the "loss of society" of their daughter.

In this jurisdiction a similar case has been commenced by the solicitors JR Jones (who also represent the Lawrence family), acting for the family of Joan Francisco, a 27-year-old gynaecologist who was strangled in her home. A lack of evidence meant that the alleged killer was not charged but a civil action for assault and battery has been launched against Tony Diedrick, 37, from Maida Vale in London. Diedrick denies the allegations but faces a claim for £50,000 compensation.

In the Lawrence case the alleged perpetrators relied on their right to silence and the double jeopardy rule. At the inquest the five implicated were summonsed as witnesses but all refused to speak, citing the privilege against self-incrimination. This even produced farcical results when one refused to answer whether he played football and claimed privilege when asked his name.

The contempt of court laws are to stop trial by newspaper (and now television) of the sort which, in the US, resulted in the OJ media circus. The test imposed by Parliament for contempt is whether a publication "creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced".

There are, at present, no proceedings outstanding relating to the death of Stephen Lawrence. If proceedings are commenced by the family for damages these would be heard by a Judge alone. Lord Salmon stated in 1977 that "I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge."

The day after it published the initial allegations the Mail showed pictures taken from a covert police surveillance video which showed a "racist thug" brandishing a long-bladed knife which was used to stab walls, windows and furniture. Clips from the video were shown by Channel Four in the documentary The Stephen Lawrence Story broadcast on 15 February.

The criminal cases against the five had collapsed before the video had been shown to the court. The Mail also gave details of the proposed identification evidence which included eye witnesses, the police seizure of weapons, the lack of alibis and the past history of the gang, which included one member being cleared by a court after stabbing a man in a brawl.

To some lawyers the actions of the Daily Mail and Channel Four went too far. Nigel Pascoe QC believes that "once you have newspapers deciding to become judge and jury you are going down a slippery slope".

Ronald Thwaites QC, who was one of the defence counsel in the trial of those charged with the murder of Stephen Lawrence at the Old Bailey in April 1996, was so concerned he had a letter published in The Times. He pointed out that the sole witness had only a fleeting glimpse of one of the attackers and the trial judge excluded the evidence on the grounds that there was no true recognition and that it was "tainted".

To the QC the reason why the case was abandoned "did not involve any fault of failure of the criminal legal system or those who participated in it: there was insufficient evidence to continue with it". He called the Mail's action "a cynical exploitation of a truly tragic event".

But Jonathan Caplan QC was critical of the Bar Council's condemnation of the newspaper's action. He recognised the benefits of the media using its considerable resources to press for miscarriages of justice to be set right.

"What, in principle, is the difference when the media comments, however forcefully, on an acquittal? Are only parts of the judicial process to be open to public scrutiny?"

The scrutiny, by the media, of all aspects of the judicial process is vital in a democratic society. No legal system is perfect; every legal system must reflect the society which it serves.

The necessary role of the media can be seen from the miscarriages of justice, such as the Birmingham Six, belatedly rectified only after prolonged campaigns by the press and television.

If the Mail is wrong then the five it has accused are entitled to Lottery-sized damages. The guidelines laid down by the Court of Appeal in recent libel decisions such as in Elton John's case against the Daily Mirror have sought to limit damages awarded by a jury to the £100,000 mark. But such an award, generous though it might seem, would not be appropriate to reflect the seriousness of the allegations made by the Mail. With no legal aid available for libel it has been suggested that the five might have difficulty in financing a legal action but many a newspaper has found to its cost that, when justice is on their side, seemingly impecunious plaintiffs manage to raise the finance to punish a publisher in court.

The laws of contempt are necessary because they preserve the rights of those involved in legal proceedings to a fair trial. But the purpose of those laws is not to stifle press criticism of the workings of the courts after the cases have been concluded. Should a jury award vast damages against the Mail, the editor may revise his opinion but that will not change the fact that the newspaper was right to start the debate.