When the first trial of the former Leeds footballers Lee Bowyer and Jonathan Woodgate went belly-up after the Sunday Mirror published an interview deemed to be in contempt of court, it was reckoned to have cost taxpayers a staggering £10m. The father of the victim told the paper that the attack was racially motivated while the 12 good men and true were deliberating on the verdict at the end of an exhausting 11-week trial. The consequences were drastic: the case collapsed and the paper’s editor, Colin Myers, resigned in the aftermath. The newspaper was fined £75,000 for contempt plus £54,000 in costs.
The slap on the wrist for the tabloid was nothing compared with the real cost of rescheduling the trial, reckons Steven Barker, Lee Bowyer’s lawyer and a criminal law partner at London firm Barker Gillette. And the cost, he recalls, was not just financial. “It was devastating,” he says. “Not one person in that courtroom wanted to go through the experience again. Not the defendants, the alleged victims or those witnesses who had to give evidence.”
The lawyer reckons that the father’s interview 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 continues: “I’d really like to see a fine commensurate with the cost of the trial, because the press have got to be more responsible about the criminal justice system and the powerful effects their stories have.”
Broadening contempt’s horizons
Barker could have his way. Two weeks ago proposals were unveiled which mean that editors and newspaper owners would have to meet the full costs of another, similar, collapsed trial. The Lord Chancellor announced proposals to make anyone who causes a criminal case to collapse through serious misconduct liable to pick up the tab. At present, only a party to the proceedings or their lawyer faces an order for ‘wasted costs’ if they are aborted. The new rules targets ‘third parties’, a heading which would include jurors, witnesses, the media and even the general public.
“The disruption and trauma that the sudden collapse of a case can cause to the main parties, such as victims, witnesses and defendants, can be significant. In particular, it can prolong the suffering of victims,” Lord Falconer said. “An important part of a victim’s recovery involves the offender being brought to justice quickly and efficiently. The Government recognises this and these reforms put victims and witnesses at the heart of the criminal justice system.”
While defence lawyers will welcome ministerial attempts to curb the excesses of the press, media lawyers resent the latest in a line of perceived assaults on media freedom. “The law of contempt is there to stop newspapers and third parties interfering with the fount of justice and/or prejudicing people’s proceedings,” comments Alastair Brett, legal manager of Times Newspapers. “It seems quite wrong that you should use a totally separate piece of legislation when and if the Contempt of Court Act doesn’t quite fit the bill.”
Martin Soames, a media litigation partner at DLA, complains that the new regulations are “a blunt instrument”. He argues that the test of ‘serious misconduct’ that can lead to massive liability under the new proposals falls far short of the statutory test for contempt. “It will be possible to impose deep-cutting costs penalties for reporting which is not even in contempt,” he argues.
Fleet Street lawyers have been greatly upset by the Attorney-General Lord Goldsmith’s recently acquired habit of firing out guidelines on pre-trial publicity (not binding in law) in an attempt to calm down media free-for-alls.
“There’s an implication that a line has been drawn in the sand and that if the media cross it they’ll be in difficult territory,” Soames says. For example, Lord Goldsmith issued guidance over last year’s allegations of rape against a group of Premiership footballers after a number of red-top newspapers published details of the suspects. Lord Goldsmith had previously made it clear that, as guardian of the public interest, his job was to ensure that justice took its proper course by drawing the press’s attention to “potential pitfalls”. “The Government is getting obsessed with trying to control the media; they’re obsessed with spin,” Brett reckons.
Roy James, one of two partners at Peterborough criminal firm Lewis James, is another lawyer who has seen the issue from the other side. He represented Maxine Carr in the trial following the murder of the two Soham 10-year-old girls, Jessica Chapman and Holly Wells. “I can’t envisage a scenario when the press was reporting in a potentially more prejudicial way than in Soham,” he says. It would have been a “brave, probably suicidal” judge to abandon that trial, no matter how out of control the press pack was, he adds. James welcomes the proposals as “a convenient halfway house” between letting the press run free and the serious option of invoking the contempt laws.
“But I’m also a pretty avid believer in the jury system,” James continues. “By and large, the jurors can generally put these things out of their minds. They act upon the instructions of a judge and, in a sense, the more high profile a case, the more you’d expect them to be taking the matter – and in particular the judge’s instructions – seriously.”
Under the influence?
That is the unanswered question: the extent to which jurors themselves feel influenced by the media. Of course, the publication of jury deliberations is banned under the Contempt of Court Act. James actually does not believe that the jurors in the Soham trial were greatly affected by the press histrionics. “If they had been, Maxine Carr would have been convicted of the more serious offence. But that’s not to say we shouldn’t try and limit the risk,” he adds.
Does Barker believe that a jury would have been robust enough to have withstood the Sunday Mirror article? They might well have been able to, he replies. But the defence team felt “duty bound” to call for the trial to be aborted. “You can’t question a jury about what effect an article had after the trial,” he says. “It was a difficult and horrible call to have to make and there are always going to be some people out there who think that the judge shouldn’t have stopped it.”