Her Majesty’s Attorney-General Claimant – and – (1) MGN Limited Defendants (2) News Group Newspapers Limited [2011] EWHC 2074 (Admin)

The High Court has found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. The court was strongly critical of the “vilification” of a man who was arrested but quickly released without charge.

The proceedings were in relation to Christopher Jefferies, a school teacher who was arrested early on in the investigation. The court fined the Daily Mirror £50,000 and The Sun £18,000.

The ‘strict liability rule’, contained in sections 1 and 2 of the Contempt of Court Act 1981, relates to publications during the time that court proceedings are ‘active’, and which create a risk of prejudice to those proceedings. The liability is strict, in the sense that the publisher’s intention is irrelevant: that is, liability is unaffected by whether or not there was an intention to prejudice the proceedings. The rule applies in cases where

a publication… creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. (s.2(2))

Due to the limits of the Contempt of Court Act, the court was only considering the coverage after the arrest of Mr Jefferies. But the Lord Chief Justice was clear that as a matter of principle,

the vilification of a suspect under arrest readily falls within the protective ambit of section 2(2) of the Act as a potential impediment to the course of justice

The Lord Chief Justice accepted that juries generally act responsibly in performing their public duty, and that the risk of conscious or even unconscious prejudice against the defendant may have dissipated before trial. Nonetheless:

Adverse publicity may impede the course of justice in a variety of different ways, but in the context we are now considering, it is not an answer that on the evidence actually available, the combination of the directions of the judge and the integrity of the jury would ensure a fair trial. [31]

The court was confident that the 1981 Act – and in particular the criminal standard of proof (beyond reasonable doubt) which it required – was compliant with Article 10 of the European Convention on Human Rights, the right to freedom of expression:

The 1981 Act represents the system provided in this jurisdiction to ensure that the right to a fair trial is protected. In the present context any interference with the article 10 rights of the defendants depends on proof to the criminal standard that the publications in question have created a substantial risk of serious impediment or prejudice to the course of justice. This falls comfortably within the limitations acknowledged in the Convention itself [32]

The Lord Chief Justice went on to consider the particular facts of this case. In relation to the Daily Mirror, the material was “extreme”. Moreover:

It is submitted that the articles were unflattering, suggesting that he was an eccentric loner. So they were. But they went very much further. It was asserted, in effect directly, that his standard of behaviour, so far as sexual matters were concerned was unacceptable, and he was linked to both the paedophile offences and the much earlier murder offence. That indeed was the point of the articles. [34]

The court’s next point seems so obvious that it is amazing the newspaper did not spot it:

The juxtaposition of the photographs of two murdered women, together with the layout of the places where they died in proximity to Mr Jefferies home, was stark. [34]

The court was concerned with the potential effect on a trial of Mr Jefferies himself; a normal consideration in relation to contempt proceedings. But it also made a novel point; that if put on trial, Jefferies would find it more difficult to find witnesses in his defence:

reluctant witnesses would have been even more reluctant to come forward, and witnesses who might have been prepared to come forward may very well have assumed that anything helpful or supportive they might have said about Mr Jefferies could not be right. [35]

In conclusion, the two Daily Mirror articles created “substantial risks to the course of justice.” The Sun was also found to have committed contempt. The articles in one issue of the newspaper

were written and laid out in such a way that they would have conveyed to the reader of the front page and the two inside pages over which the stories were spread that he was a stalker, with an obsession with death, who let himself into the flats of other occupants of the building where Miss Yeates lived, and that he had an unhealthy interest in blonde young women. [37]

A final point made by the court was that both newspapers threatened not just the potential conduct of any trial of Jefferies himself (this seems unlikely now), but also of the actual defendant in the case whose trial is to come:

There is, we put it no higher for present purposes, at least a risk that adverse publicity against the first individual may be used in the course of the trial of the defendant to divert attention away from him back to the first individual. [38]

The Lord Chief Justice left open the question of whether the government should consider extending the ambit of contempt rules to articles published before proceedings are brought against a defendant, in order to protect people against vilification. At present, if the timing of the articles had been slightly different, Jefferies may have been unprotected by the criminal law.

A warning shot

The Attorney General has been active in bringing contempt proceedings against newspapers. He even warned newspapers in relation to Jefferies at the time of the coverage. Just last week the Sun and Daily Mail were fined £15,000 each and made to pay significantly more in costs. The facts of this case are just as stark as in that one, but the “vilification” aspect of this case of a man who was released without charge certainly stands out. In particular, the large fine in respect of the Daily Mirror reflects the seriousness of the contempt.

The brazen nature of Jefferies treatment certainly accords with the point made by legal commentator Joshua Rozenberg in the latest Without Prejudice podcast that newspapers appear to have no legal expertise on hand to consider whether an article may be in contempt of court.

Another possibility is that the newspapers know full well the risks and choose to take them on the basis of a cold financial calculation; additional sales now make up for potential fines later. In this case, the newspapers have also apparently settled a libel claim brought by Jefferies, so it will have cost them more than the contempt fines.

The court is right to highlight the potential justice gap which exists before proceedings are brought; the current language of the law means that to be in contempt a defendant has to prejudice proceedings, and without proceedings there is nothing to prejudice. That being said, contempt rules primarily exist to protect the administration of justice, so whilst sanctions against vilification may be desirable perhaps contempt proceedings are not the right vehicle for them.

Nonetheless, this case raises serious questions as to whether the protection of the reputation and privacy, enshrined under Article 8 of the European Convention, of criminal suspects is robust enough. Jefferies may have received financial compensation, but he cannot buy back either his reputation or privacy. Max Mosley has failed to convince the European Court of Human Rights that a pre-notification requirement is necessary in relation to sex scandals, but press coverage which paints a person as a perverted potential-pyschopath is far more serious, and such an argument on these facts may be more attractive.

Hopefully this will be one of the many issues which Lord Justice Leveson will consider in the upcoming phone hacking inquiry. Until then, and unless the court takes a very strong line on financial sanctions, the vilification of potential criminal suspects is likely to continue.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks