How bad does press coverage at the time of an individual’s arrest have to get for it to be regarded as a contempt of court? This interesting question was at the heart of the recent case ( EWHC 2074 (Admin)) concerning coverage of my client Christopher Jefferies’s arrest by police investigating the murder of the landscape architect Joanna Yeates. The contempt action was brought by the attorney general under section 2(2) of the Contempt of Court Act 1981, which applies to any publication that creates a risk that the course of justice will be seriously impeded or prejudiced, whether or not they intended to do so.
The Sun and Daily Mirror, both in the dock, adopted more or less identical positions in resisting the committal proceedings. They essentially argued that coverage had to be very, very bad to be in contempt of court, and that theirs wasn’t bad enough. In defence of the substantial “risk of prejudice” allegation, both relied heavily on the “fade” factor – that a jury would not be prejudiced almost a year later at a trial in the crown court, particularly with firm judicial guidance on putting adverse coverage out of their minds. Regarding “impedance” of the course of justice, their plea was that this was all too theoretical, and that the A-G had no evidential basis for this part of his argument.
The upshot was conviction for both papers on the “impedance” limb which, the court noted, is not synonymous with the better-known concept of prejudicing the course of justice. The criminal standard applied to the finding. As Jefferies was bailed without charge two days after arrest, and then released from bail, the divisional court was asked by the A-G to look at the case on what they called a “predictive” basis.
I attended the contempt “trial” in July (politely referred to as “the attorney general’s application for a motion for committal”) of MGN Limited and News Group Newspapers Limited, respectively publishers of the Daily Mirror and the Sun, on a watching brief basis. At the time these two defendants had not settled the libel and privacy claims. Last Friday turned out to be a tabloid double whammy – apologising for libel in the morning and being found guilty of contempt in the afternoon.
In the morning eight titles apologised in open court to Jefferies, followed by the Sun being fined £18,000 and the Mirror £50,000 in the contempt proceedings. The Mirror – whose articles under scrutiny were described as “extreme” by the court – refused to be contrite, whereas the Sun offered up belated apologies through its QC at the hearing. Both newspapers were refused permission to appeal and are understood to be in the process of petitioning the supreme court.
The trial and judgment hearings were heard in July, the month that the tabloids, fresh from their triumphant “outing” of Ryan Giggs in May, suddenly found the tables turned on them in the phone-hacking scandal. The contempt case was heard by three judges, including the lord chief justice. They looked less than impressed as the two QCs for the tabloids patiently explained that just about anything goes when it comes to what can be said after arrest, because of the “fade factor”.
Put politely, the stories did not meet the “requisite” risk of substantial prejudice, asserted both newspapers. Interestingly, both were able to rely on a raft of failed cases brought by convicted defendants such as Abu Hamza, who had sought to use adverse coverage as a basis for appealing convictions. Put shortly, what is good enough for the courts in those cases should be good enough for the same newspapers in this case, they said. “Consistent judgments, please” was a plea from the defence on the prejudice limb.
The court appeared to be very engaged and interested in the AG’s submissions on whether press coverage that vilifies a suspect might then impede the defence’s trial preparation by causing such a hostile image of a prospective defendant that it would impair the ability to get witness evidence. In their decision this proved to be the basis for convicting both newspapers.
I have been contacted by many journalists who work for broadsheets and broadcasters who remain furious at the coverage of Jefferies’s arrest. They remember their training: on arrest be spare and factual with the details to avoid prejudicing the course of justice. Perhaps someone should pin a banner with those words up in the newsroom of the tabloids before the next witch-hunt?
This post originally appeared in Guardian Law and is reproduced with permission and thanks.