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6 December 2013
The ghastly killing of the two 10-year-old girls, Jessica Chapman and Holly Wells, was in the back of Lord Goldsmith's mind as he promised to clamp down on contempt of court abuses. "In order to secure justice, it is on occasion necessary to curtail the rights to report and comment on matters before the courts," he went on to say.
Bold words indeed. But it would be a brave judge (and even more so a member of the Government) to take on the press pack in pursuit of a story quite so emotive as the trial of school caretaker Ian Huntley and his partner Maxine Carr.
"I can't see how a high-profile case, whether it be Huntley or Carr, could be scrapped by a judge on the basis that a defendant would have an unfair trial," argues Roy James, one of two partners at Peterborough criminal firm Lewis James, who represents Carr. "It would simply be perceived to be too damaging to the criminal justice system, but of course the problem doesn't come from the criminal justice system itself, but from the press reporting."
Trial by media has proved relentless over the last few months, despite intermittent warnings being fired out of Lord Goldsmith's office. Last month there was much unease at the sensationalism surrounding the reporting of high-profile child abuse suspects such as Matthew Kelly, released by the police force last month after it decided there was no evidence to charge him. At the beginning of the year, the appearance of the alleged killer of DC Oake in a white shirt and mask to conceal his identity followed a statement by Lord Goldsmith expressing concern about some of the "assumptions that have been made" in parts of the press.
And then there was the coverage of the Soham murder case itself. As soon as the suspects were called in for questioning, the press feeding frenzy began, with tabloids running photo stories headlined 'Smile of a 'Madman'' or interviews with alleged former lovers revealing their 'Twisted Sex Shame'. A decision by the Attorney General over the Soham coverage is still pending.
While newspaper editors apparently feel emboldened to push at the edges of the contempt laws, there was the collapse of the £1m-plus trial of Leeds United footballers Lee Bowyer and Jonathan Woodgate following a Sunday Mirror article to remind them of what is at stake.
Defence lawyers routinely bemoan the perceived weakness of the Attorney General and the lack of clarity in the Contempt of Court Act 1981, and newspaper lawyers protest, with equal vehemence, at political interference in their press freedoms.
Martin Cruddace, a partner at London media firm Schillings, is uniquely placed to see both sides of the story. He spent many years on the other side, having advised the Mirror Group, including the Daily Mirror, the Sunday Mirror and The Sunday People, before crossing over into private practice. Although he believes that the legislation is sufficiently rigorous, he admits to a certain amount of "disquiet" about recent coverage. In particular, he feels that the Soham reporting was "particularly close to the mark", and also doubts whether Matthew Kelly could have had a fair trial.
"There are two examples where I'd be uncomfortable advising newspapers to publish," says Cruddace. "But the press is so good at getting background information which even eight years ago would have to have been published after the trial, and now it's coming out on arrest."
The 1981 act allows the Attorney General to police prejudicial material and an article or broadcast that creates a substantial risk of serious prejudice is deemed a contempt of court. It must be proved beyond reasonable doubt that publication causes that risk.
James at Lewis James has no problem with the legislation per se, but argues that there is confusion over when proceedings are 'active' and the legislation applies. It might seem clear-cut, but apparently it is not. "The press regards contempt as kicking in as soon as someone's charged, whereas really proceedings are commenced when someone's arrested," he says. "There seems to be a misconception that there can be a free-for-all at the police station."
According to Cruddace: "The threshold that the Attorney General must overcome is a lot higher, perhaps, than the original legislation anticipated, because of how the courts have developed the law themselves; and the courts have regularly found that there has been no contempt, which may raise eyebrows among criminal defence solicitors."
David Corker, a partner at London firm Corker Binning, who acts for Michael Barrymore, takes a similar view. He recently argued that the legislation imposes an "unreasonably high threshold of proof" to establish contempt. According to the solicitor, under the law, a single article or programme alone and in isolation creates a substantial risk of serious prejudice. "So it fails to address the much greater danger of insidious prejudice, which coverage cumulatively creates a climate of hostility," he argues. "Editors, aware of this lacuna, can therefore undermine the supposed protection by each nudging the contempt barrier back a little."
But the courts, of course, are prepared to come down hard on damaging press reports that appear immediately before or during a trial - as the Sunday Mirror found out to its cost when it was fined £75,000 last April for causing the collapse of the first trial of Bowyer and Woodgate, after publishing an interview with the victim's father when the jury was deliberating the verdict.
According to Steven Barker, a criminal law partner at London firm Barker Gillette, who represents Bowyer, the story was "devastating" to his client. "Basically, it amounted to a plea to the jury, despite what the judge and the prosecution said and in the total absence of evidence, that 'this boy is a racist and treat him as such'," he recalls. He argues that a £75,000 fine was hardly commensurate with the loss caused. Newspapers and their editors should owe a duty of care under the civil law in negligence that would enable his client to sue for his costs of the second trial. "And if there's a duty of care, this is definitely a case where it's been broken," he adds.
Cruddace was at the Daily Mirror when Bowyer's trial was aborted, but was in Tobago on holiday at the time ("otherwise I wouldn't have been there much longer", he says). He believes the case illustrates that the present contempt regime does work.
As he sees it, there are two very strong disincentives for a paper to push the law too far. First, editors are concerned about the threat of contempt proceedings which, although "not as bad as libel", are nevertheless taken seriously. "But also, no editor wants to be responsible for stopping a major criminal trial, and the thought of that and the abuse from their colleagues is quite a disincentive," he says.
Alastair Brett, the legal manager of Times Newspapers, believes the Bowyer fiasco, which led to the resignation of Colin Myler, was a "cock-up". "But I don't believe that what the Mirror did was so heinous as to cause the trial to be aborted," he continues. "It was a strange ruling by the judge and lots of people in the business regard it as quite draconian."
Brett is unhappy at Lord Goldsmith's recent pronouncements on the need for new guidelines for the press, because he detects the unchecked creep of political interference. "The Attorney General seems to think that he, through a sidewind, can start dictating to the press what we can or can't do, even though we're complying with the provisions of the law," he complains. He is mindful of two recent guidance notes published by the Attorney General on his website concerning the trial of Algerian terrorists in Leicester. It is a move that has incensed other Fleet Street lawyers, who see it as an unnecessary intervention. "There could be a terrible falling out between the Government and the Attorney General and the national newspapers," he adds.
This controversial guidance from the Attorney General underscores the difficult political balancing act that his office represents. As John Wadham, director of human rights group Liberty, put it recently, Lord Goldsmith is at once "the guardian of the rights of suspects on arrest", while at the same time he is expected to act in the interests of the Government, often "at different times of the same day".
"Sometimes stories of arrests are linked with completely unrelated alleged threats - and seem to tie in all too neatly with the Government's media agenda," Wadham reckons. As Wadham says, however hard he might try, is it realistic to expect a member of the Government in these circumstances to be able to take on such considerable forces?
|Trial by media: freedom of speech is not a trump card|
|From the Attorney General's speech at the annual Mary Ward Lecture this month: |
Lord Goldsmith QC drew on the recent Pedro Almodovar film Talk to Her to illustrate a point. One of the main characters is accused of a serious crime. His landlady, a person who takes a keen interest in the activities of her tenants, knows this, but no more. So she questions the man's friend. "He's innocent!" declares the friend. "Of course he is," replies the landlady. "But innocent of what, exactly?"
He was speaking of the tension between the public's interest in knowing about court proceedings and the public interest in ensuring that proceedings are conducted fairly. And clearly, the film had struck a chord.
The Government's top lawyer said that freedom of speech was "the lifeblood of democracy", although he went on to say: "But freedom of speech, while of vital importance, is not always paramount. It is not a trump card. Like other freedoms, it may be subject to certain legitimate restrictions. There will be occasions when it must yield to competing public interests of various kinds."
He said he had become "increasingly concerned at the nature and weight of media coverage in high-profile and sensitive criminal cases", notably the coverage of the investigation and early stages of prosecution of Ian Huntley and Maxine Carr.
The Attorney General said he was also conscious of "the seemingly growing and more frequent need" to issue guidance notes dealing with much more general aspects of pre-trial publicity, but which can have the potential to create serious prejudice.
He cited the following as further examples:
Reporting that asserts or assumes, expressly or implicitly, the guilt of the defendant. This might be a banner headline or a lengthy detailed report of the evidence. Reporting should not assert or assume the outcome of a preliminary issue to be determined by a jury, such as the fitness of a defendant to stand trial.
Information that may hamper or prejudice a police investigation with regard to the gathering of evidence, or prejudice subsequent proceedings, such as the publication of a sus-pect's photograph, which could, for instance, lead to the defendant refusing to stand on an identification parade.
Reports that contain a detailed account of the circumstances leading to the criminal charges in question may amount to a rehearsal of the evidence, the defence that the defendant may raise and the issues that the jury may have to decide. The jury should decide the guilt or innocence of a defendant on the evidence it sees and hears in court, and not on the basis of what its members might have seen in the media.
Reports containing comment or information about witnesses that may undermine their integrity and the credibility of their evidence. The assessment of witnesses is the function of the jury.