The recent media coverage of the Gloucester investigations and the "baby Abbie" case questions the limits of trial and pre-trial reporting and the increasing difficulty of identifying the line between fair public comment and contempt.
This is not an issue just for the press, the police and the prospective witness. There is great public appetite for detailed contemporaneous reporting of high-profile litigation. Press coverage is now routinely used to attract attention – and prospective plaintiffs – to group actions being launched. There is also the culture of self-promotion engendered by the relaxation of professional advertising rules. All these forces put great pressure on many private practitioners, in both criminal and civil cases, to assume the role of the client's press manager and spokesman and to write, or to be quoted, freely in relation to their pending cases.
It is, however, worth reminding ourselves that instructions from a client to make a press statement about his or her case provide no protection from contempt (see the Guide to the Professional Conduct of Solicitors, Sixth Edition, 1993 Part V principle 22.13 ). Without that express instruction, no such statement is permissible at all (see Solicitors' Publicity Code 1990, paragraph 4 and the Guide, principles 16.01-16.04). No copies of speeches or addresses made to a court or tribunal (nor, it would seem, personal summaries of those submissions) can be distributed to the press, radio or TV except at the time of the hearing itself, and then they should be given only to those reporters who have actually attended the hearing (see Solicitors' Publicity Code, 1990, paragraph 11).
The media, able to take refuge in the principle of press freedom, will often take a robust line when reporting litigation. It is seldom a line which the legal profession can follow. Greater public scrutiny of litigation is commendable, but public comment can be a seductive trap for the litigator. It is usually best avoided.
Paul Bowden is a partner at Freshfields.