In July this year, The Mirror and The Sun newspapers were fined £50,000 and £18,000 respectively by the Divisional Court for strict liability contempt under s.2 of the Contempt of Court Act 1981 for the “vilification” of Christopher Jefferies, who had been arrested for the murder of his former tenant Joanna Yeates. He had been released without charge shortly after his arrest but whilst he was the subject of investigation “extreme” material had been published about him by both newspapers including suggestions that “he was linked to both … paedophile offences and … [an] earlier murder offence”. The case was unusual and raises as many question as it answers.
It is a contempt of court under the ‘strict liability’ rule contained in s.2 to publish anything which creates a substantial risk that the course of justice in the proceedings in question will be seriously prejudiced or impeded. The contempt is made out despite any lack of intent to do wrong. “Substantial” risk means “more than remote or minimal”.
Proceedings were active for the purposes of contempt in Jefferies’ case from the moment he was arrested. Prior to his arrest he was not protected by the Act. At the time he was arrested, no-one was to know that he would never face trial or that he would soon be entirely exonerated. As it transpired the articles could not and did not have had any actual effect on his trial, because there was and will never be one. But that was irrelevant to the newspapers’ liability for contempt because the Act requires a predictive assessment of the risk of prejudice/impeding at the time of publication.
Shortly after Jefferies’ release from custody (but before he was released from police bail), another man (Tabak) was charged with the murder of Yeates. Tabak has now pleaded guilty to her manslaughter on the grounds of diminished responsibility. There is therefore no dispute that Tabak was her killer but his mental state at the time remains to be tried by a jury (in the autumn).
The Court’s route to finding contempt against the papers involved a number of steps, many of which have wider implications:
- It was irrelevant that Jefferies will never face trial – the focus was the risk at the time of publication that proceedings against him might have been prejudiced/impeded.
- It is irrelevant whether Jefferies might be entitled to substantial libel damages. If fact he subsequently obtained such damages.
- The ‘fade factor’ – the fact that any trial of Jefferies would take place some time after the offending articles and appropriately robust judicial directions would be given by the trial judge (e.g. to ignore anything they may have read about the case beforehand) – was undoubtedly relevant in assessing the risk of prejudice.
- But the risk that the course of justice might be seriously impeded also had to be assessed separately. That was distinct from the risk of prejudice.
- Jefferies’ case was unusual in that it was entirely predictive, whereas often a court assessing contempt awaits the outcome of the criminal proceedings and looks back to assess (with hindsight) what was the risk at the time of publication.
- Pre-arrest media coverage was irrelevant, however prejudicial, since proceedings were not active at that time. That was so even though such coverage may have been defamatory or might have been taken into account by any trial judge in deciding whether to halt a trial on grounds of prejudice.
- The prejudice caused by each newspaper had to be considered separately – contempt is effectively a criminal sanction and cannot be ascribed collectively – even though the totality of the prejudice might have been considered by any trial judge in deciding whether a fair trial was possible.
- Even though no trial did or will ever take place, it was relevant to ask whether the material was so prejudicial that it might have created an arguable ground of appeal against conviction.
- The question of impeding the course of justice outside the trial process was relatively uncharted territory in the case law. If offending material might deter or discourage witnesses from coming forward and providing information helpful to a suspect that might of itself constitute a contempt. This may occur because a witness is then reluctant to be associated with the suspect or because the witness may doubt whether their favourable information could possibly be correct in the light of the unfavourable publicity. The integrity of the jury and forthright judicial directions are not necessarily enough to ensure a fair trial, especially when the evidence at trial may be incomplete and new material may only come to light after conviction.
- The 1981 Act was a proportionate interference with Article 10 which was necessary to ensure that the right to a fair trial under Article 6 was adequately safeguarded.
- The Court then analysed the publications in detail and found a contempt by each newspaper on the basis that defence witnesses would be reluctant to come forward in the light of them, and that there was a serious risk that the preparation of Jefferies’ defence would be damaged by the publication of the material. In other words, the Court found contempt solely on the basis that there was a substantial risk that the course of justice would be seriously impeded.
- Finally, the Court raised the possibility that material which vilifies an innocent suspect might then be improperly deployed by a different, guilty suspect and enable him to evade justice – which would also potentially constitute impeding the course of justice. In Jefferies’ case the publications in question were made before Tabak had been arrested and so proceedings were not active in Tabak’s case for the purposes of contempt at the time of publication of the Jefferies’ material. Moreover Tabak is not contending that anyone else is responsible for the killing and so he could not deploy the Jefferies’ material anyway.
The carefully crafted judgment has widespread implications both for future and previous cases. Firstly the Court rightly emphasised the importance, when performing a predictive assessment of the extent of the prejudice caused by publication, of whether the offending material might have formed an arguable ground of appeal against conviction at any trial. That echoed what it had said earlier in the year in the first online contempt case.
Although there may simultaneously be a contempt (potential prejudice) and a safe conviction (no actual prejudice) the court “should not speak with two voices”. In Jefferies’ case that predictive exercise was highly speculative not least because he did not and will never face any trial. But in other cases, in which the suspect against whom prejudicial material has been published has been tried, the position may be different.
The court did not expound on its evident reluctance to find contempt based on the conventional ‘prejudice to trial’ route. It might have been because the ‘fade factor’ is a difficult argument to dismiss in the abstract, where no trial did or will ever occur. The ‘fade factor’ relies in part on the absolute integrity of the jury and its obedience to the trial judge’s orders. Although the Court had reaffirmed those principles in the online contempt case, they sit somewhat uncomfortably with the Facebook juror case, in which the juror had plainly disregarded the judge’s directions and her oath.
But more likely is that the Court had in mind the wider implications for other cases if it had found contempt on that basis. If the material in Jefferies’ case was prejudicial enough to constitute a contempt, that would mean that he would have had an arguable ground of appeal against conviction (based on prejudicial publicity) had he been tried. But if so, that might have called into question some of the most infamous cases in which there has been extremely prejudicial pre-trial publicity. The Court’s judgment referred to the cases of Rosemary West, Barry George, Michael Stone and Abu Hamza, for example, in which appeals against conviction based on pre-trial publicity had all failed. Although direct comparisons are difficult, the nature and type of the material in those cases would seem to be at least as prejudicial as that in Jefferies’ case. Other cases, such as the Scots case of Montgomery and Coulter and the Maxwell brothers’ trial, also involved extensive prejudicial pre-trial publication. Indeed one of the only criminal appeals ever to have succeeded on the basis of prejudicial pre-trial publicity is that of the Taylor sisters in 1993.
Double jeopardy cases, where an acquittal is quashed because of new and compelling evidence, also present special problems. In such cases reporting restrictions will apply once the application to quash the acquittal has commenced. But before such an application there is often some form of campaign to have an acquitted person re-tried in which much prejudicial material is published and when proceedings are not active under the 1981 Act.
So it may be that was the motivation behind the Court preferring to take the unusual route of contempt by ‘impeding the course of justice’, rather than the customary ‘prejudice to trial’ path. But the difficulty is that the arguments which ultimately succeeded were of such general application that previous and future cases will undoubtedly be affected. If there was a substantial risk that potential defence witnesses in Jefferies’ case might not have come forward because of the published material and his trial preparation was thereby impeded, why would such an argument not apply in many of the other cases in which extremely prejudicial material had been published? Although Jefferies’ innocence was established soon after his arrest, in other cases (as the Court’s own judgment recognises) this may be harder to prove. A convicted suspect may say, with some force, “although I called no witnesses to support my case, that is hardly surprising given the extent of prejudicial pre-trial material which was published in my case”. The judgment does not identify clearly what was special about Jefferies’ case in this regard.
The final situation considered by the Court – where a guilty suspect wrongly deploys prejudicial material which was published about an innocent suspect in an attempt to be acquitted – raises many unanswered questions. Although the Court accepted that a second suspect would be legitimately able to deploy “fair and reasonable” material about the first suspect in order to introduce doubt about guilt, the difficulty lies in knowing how that assessment can be done predictively. At the time of publication, how is the media to know who is or will ultimately be found guilty? Whether material is fair and reasonable seems to import some sort of assessment of whether the first suspect is innocent. Although that was quickly established in Jefferies’ case and confirmed by Tabak’s guilty plea, in many cases this may not be known until the outcome of trial (or even later as some well known miscarriage of justice cases demonstrate).
The case also comes against a background of the Attorney-General wanting to demonstrate that he is taking the appropriate line in contempt cases at a time when the impossibility of controlling material on the internet (and juries’ access to it) is at the forefront of the public interest. Since we have limited jury vetting in this country that must mean that contempt laws are enforced with a greater zeal than in the USA, for example, where the principal means of safeguarding a fair trial amidst an unrestrained media is by extensive jury selection procedures.
One aspect which the Court might have given closer consideration to was the chain by which the media come to identify suspects under investigation. Typically there is no public interest whatsoever which justifies the police naming a suspect who is merely under investigation. And if the suspect is not named then the media may lack the means to identify him and in many cases this would prevent prejudicial publicity from being aired at all. In 2008, the House of Commons Home Affairs Committee gave its view:
“… we do not think it is ever acceptable for officers to identify individual suspects to the media before charge, as this has the potential to damage the investigation, any subsequent trial and the reputation of suspects released without charge”.
ACPO issued guidance in 2010 which, although it states that the police “do not generally volunteer the name of those they are investigating”, nevertheless gives the police a wide discretion to name or confirm the identity of suspect.
But overall might it not be easier and more effective than s.2, whose operation is undoubtedly difficult to predict, if there were particular types of material which could be published about a person who has been arrested? Alternatively there could be categories of material which could be proscribed pre-trial, such as previous convictions. If necessary such restrictions could be extended to persons who are under investigation but have not been arrested.
Whatever view is taken of the Jefferies judgment, the outcome of any appeal by the newspapers in it will be closely watched from many diverse quarters.
Alex Bailin QC is a barrister at Matrix Chambers