QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
| Her Majesty's Attorney General
|- and -
|Associated Newspapers Ltd
News Group Newspapers Ltd
Mr Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for the First Defendant
and Mr Anthony Hudson (instructed by Farrer & Co) for the Second Defendant
Hearing dates: 2nd February 2011
Crown Copyright ©
Lord Justice Moses :
"Also, I would imagine by the nature of this case, and you'll see there's obviously press interest in it there will be some reporting of this case. Again that's a matter the press are free to report upon but you go on only the evidence you hear in this room, not the view other people may or may not have about it."
"Please don't try and get information from outside this room about this case. Don't, for example, consult the internet, if there is anything out there on it. I'm not saying for one moment there is but don't go there, don't try and get it from anywhere else. Again the reason for that is the evidence in this case is evidence that the defence know about and the prosecution know about. It's evidence that will evolve in this case in this room where all of us know what you're basing your decisions upon. If one person decides to go off and consult the internet or something else about it, then we don't have any control over that and you may be taking into consideration matters which have no relevance whatsoever to the case."
Following the prosecution opening, the jury were sent home.
"Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV."
The picture remained on Mail Online for 4 hours and 54 minutes, when it was removed at 9.58 p.m.
"could not be affected by what they might hear or see in the press…I am quite satisfied that I gave the jury sufficient warning not to seek help or information from any external source about this case." (Paragraph 8)
"I am quite satisfied, from the answers they [the jury] gave to the matters I posed to them this morning, that they did heed the warning and the order that I made on Tuesday, and none of them have been near the internet. I fully accept it when they say they know nothing of anything that might have been on the internet. They were, after all, following my express instructions and I have no reason whatsoever to distrust what they say. I am satisfied that they know nothing at all of what has happened."
Relevant Legal Principles
"1. The strict liability rule.
In this Act 'the strict liability rule' means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent do so."
"(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
"If, as in the instant case, and probably in most other criminal trials upon indictment, it is the outcome of the trial or the need to discharge the jury without proceeding to a verdict that is put at risk, there can be no question that that which in the course of justice is put at risk is as serious as anything could be."
Nowadays it is Schieman LJ's list of principles in Attorney General v MGN Limited and Others  EMLR 284,  1 All ER 456 which is most frequently cited. The fourth principle, that the risk must be substantial (290) is explained by reference to Auld LJ's comment in Attorney General v BBC  EMLR 76 that the threshold of risk is not high but must be proved to be simply more than remote or minimal.
The Risk of a Juror Seeing or Looking At the Photograph
"10) In making an assessment of the residual impact of the publication on a notional juror at the time of trial the court will consider amongst other matters: (a) the length of time between publication and the likely date of trial, (b) the focusing effect of listening over a prolonged period to evidence in a case, and (c) the likely effect of the judge's directions to a jury."
"In determining whether publication of matter would cause substantial risk of prejudice to a future trial, a court should credit a jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them."
"We cannot too strongly emphasise that the jury will follow (appropriate directions), not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair."
Serious Prejudice: the Impact of the Photograph
Serious Prejudice: the Ability of a Jury to Disregard Extraneous material and Obey Directions
"To establish contempt it needs only be shown that there was a substantial risk that serious prejudice, which must in my view mean such prejudice as would justify a stay or appeal against conviction, would result from the publication" (Sedley LJ in Attorney General v Guardian Newspapers Ltd  EMLR 904, 915).
"only where the effect of the publicity has been so extreme that it is not possible to expect the jury to disregard it will it be appropriate to stay a trial on the grounds of abuse" (para.78).
It is on the basis of that line of authority that the defendants submit that there was no substantial risk that the impact of the photograph, if seen by a juror, would have been so great as to cause that juror to ignore the directions of the judge and to have been deflected from returning a true verdict according to the evidence.
"…the questions for the trial judge and the Divisional Court (in a contempt case)…are by no means the same. The trial judge has to ask himself the question whether, in the light of the matters set out in the publication and taking into account the directions that the jury can be given, there is a real danger that the defendant cannot have a fair trial and the jury cannot reach a just (and impartial) verdict. The Divisional Court has in effect to ask the question as to whether there was before the trial judge a seriously arguable issue as to whether the defendant could have a fair trial and the jury reach a just verdict in the light of the publication. I have used the words "seriously arguable issue" in the sense that, if the trial judge had gone on with the trial, there would be a seriously arguable ground of appeal." (373H-374B).
"…if one carries this principle too far, there would be no need for a law of contempt in the first place, and on occasions it is quite unrealistic to expect the jury to disregard extraneous material, in particular when published contemporaneously with the trial ". (Birmingham Post 371B) (our emphasis).
"capture the attention of readers"… as… " a matter of reporting technique, and the European Court holds that art 10 protects not only the substance of ideas and information but also the form in which they are conveyed….. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive." In re Guardian News and Media  2 WLR 325 to.
How much more dramatic the impact would have been, after the first day of the trial in which the defendant sought to portray himself as acting in self-defence, when that image included the defendant holding a pistol.