England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice The Strand
		31st July 1996

LORD JUSTICE SCHIEMANN: This is the judgment of the Court.

Introduction

Before the court is an application by the AG to punish various newspapers for alleged contempts of court committed by the publication of various articles pending the trial of Geoffrey Knights. The background is as follows.

On Sunday 16 April 1995 Geoffrey Knights was arrested for assaulting Martin Davies and Gillian Taylforth following an incident outside Knights' and Taylforth's home address. On the 17 April 1995, he was charged with wounding Martin Davies with intent contrary to section 18 of the Offences Against the Person Act 1861. He appeared before Hendon magistrates' court on Tuesday 18 April and was granted bail. On the 18, 19 and 22 April 1995, the First, Second, Third and Fourth Respondents published articles concerning him. On the 12 and 13 May 1995 further articles were published by, respectively, the Third and Fifth Respondents. On the 13 June 1995, Mr Knights was committed to stand trial at Harrow Crown Court, and at a Plea and Directions hearing on the 25 July 1995, a provisional trial date was fixed for 16 October 1995.

Before His Honour Judge Sanders on the 29 September 1995, Counsel for Mr Knights successfully applied for a stay of proceedings against Mr Knights on the basis that the pre-trial press coverage of the case made it impossible for Mr Knights to have a fair trial. In a judgement dated the 3 October 1995, His Honour Judge Sanders stayed the proceedings. The AG does not allege intentional contempt in relation to any of these publications but relies instead on the strict liability rule whereunder 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 to do so.

The present application focuses, as these applications usually do, on the tension between two desiderata -

1. the desire that a person facing trial should face a tribunal which is not prejudiced against him by reason of matters which have not been proved in evidence and

2. the desire that newspapers should be free to publish what they please.

This tension is particularly strong in cases which are of widespread public interest because of the notoriety of the persons or deeds involved^[1]. The problems posed by this tension are real and recurring. The Solicitor General has drawn our attention to no less than three cases in the last 6 months where, to the Attorney General's knowledge, a prosecution has been stayed indefinitely because of pre-trial publicity. Clearly that seriously prejudices the course of justice. There must be many others where a trial has had to be delayed or moved to a less convenient place and where it could be submitted that the course of justice has been seriously impeded^[2].

The statutory provisions which govern liability for unintentional contempts are set out in the Contempt of Court Act 1981. That Act was enacted in the wake of the judgment of the European Court of Human Rights in SUNDAY TIMES v. UK (1979-80) 2 EHRR 245, in which the Court found by a majority that the Newspaper's rights under Article 10 of the Convention had been violated in that the restraint placed on its freedom of expression in reporting the Thalidomide proceedings was not necessary and had not been proportionate to the legitimate aim pursued. As Lloyd LJ observed in AG v. NEWSPAPER PUBLISHING PLC (1988) 1 Ch 333 at page 382E-F:

" ... the statutory purpose behind the Contempt of Court Act 1981 was to effect a permanent shift in the balance of public interest away from the protection of the administration of justice and in favour of freedom of speech. Such a shift was forced upon the United Kingdom by the decision of the European Court in SUNDAY TIMES v. UK, and was in any event foreshadowed by the recommendations of the Phillimore Committee, Report of the Committee on Contempt of Court (1974: Cmnd 5794)".

The crucial section in the present context is s.2.

s.2(1) The strict liability rule applies only to publications, and for this purpose 'publication' includes any speech, writing, broadcast or other publication in whatever form, which is addressed to the public at large or any section of the public.

(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.

(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication".

The principles governing the application of the strict liability rule.

These are as follows and are not the subject of serious dispute :-

1. Each case must be decided on its own facts^[3]

2. The court will look at each publication separately and test matters as at the time of publication^[4]; nevertheless, the mere fact that, by reason of earlier publications, there is already some risk of prejudice does not prevent a finding that the latest publication has created a further risk^[5]; [It was common ground that there was no room for reading the singular word "publication" in s.2 of the Contempt of Court Act 1981 as the plural in accord with Section 6 of the Interpretation Act of 1978.]

3. The publication in question must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication;

4. That risk must be substantial^[6];

5. The substantial risk must be that the course of justice in the proceedings in question will not only be impeded or prejudiced but seriously so;

6. The court will not convict of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice;

7. In making an assessment of whether the publication does create this substantial risk of that serious effect on the course of justice the following amongst other matters arise for consideration:-

(a) The likelihood of the publication coming to the attention of a potential juror;

(b) The likely impact of the publication on an ordinary reader at the time of publication;

(c) The residual impact of the publication on a notional juror at the time of trial.

It is this last matter which is crucial.

One must remember that in this, as in any exercise of risk assessment, a small risk multiplied by a small risk results in an even smaller risk^[7]

8. In making an assessment of the likelihood of the publication coming to the attention of a potential juror the court will consider amongst other matters:

(a) whether the publication circulates in the area from which the jurors are likely to be drawn

(b) how many copies circulated

9. In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication the court will consider amongst other matters:

(a) the prominence of the article in the publication

(b) the novelty of the content of the article in the context of likely readers of that publication

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^[8]

(b) The focusing effect of listening over a prolonged period to evidence in a case^[9]

(c) The likely effect of the judge's directions to a jury.

This last matter in particular has been the subject of extensive judicial comment in two different contexts : in the context of a trial or an appeal from a trial verdict and in the context of contempt proceedings. There have been many cases where, notwithstanding such prejudicial publications, the convictions have not been quashed. However, undoubtedly there have also been occasions where convictions have been quashed notwithstanding judicial directions to the jury to ignore prejudicial comments in the media.

In the former category of cases what has been stressed is that the whole system of trial by jury is predicated upon the ability and willingness of juries to abide by the directions given to them by the judge and not to accept as true the content of a publication just because it has been published^[10]. In libel cases where the issue is justification that is peculiarly the case. Confidence in a jury's capacity's to abide by judicial direction is reflected in the fact that they commonly have to consider evidence for one purpose, though not another, as in relation to joint offenders or multiple counts on one indictment. It has been pointed out that juries frequently acquit of some charges whilst convicting of others. Even in relation to sexual offences, where the risk of prejudice is self-evidently greater, Taylor L.C.J. commented on not under-estimating a jury's ability to do justice in such a context (see R. v. Cannan [1992] Cr.App.R.16). As Lawton J. put it in R v. Coughlan (1976) 63 Cr.App.R.33:-

"Juries are capable of disregarding that which is not properly before them. They are expected to disregard what one accused says about another in his absence. If they can do that, which is far from easy, they can disregard what is said in the newspaper ..."

It can fairly be asked in this context, why, given the constraints on discovering the cogitations of a jury, should the courts be trusted to form a view as to what is going on or may go on in the jury's mind? A partial, but not wholly satisfactory, answer to that is that judges preside over very many trials; they see what seems to stick in witnesses minds; they watch jurors' reactions; they receive jurors questions and observe their verdicts; and so they do obtain some feel of what appears to stick in the mind and what appears to be influencing, at any event a number, of jurors. Another answer, different in kind, is to sidestep the question and assert that, judging by the absence of legislation to the contrary, society is content to let judges make these judgments doing the best they can in what are undoubtedly difficult circumstances. Society requires a judgment to be made between conflicting desiderata and the judges are given the task of making it in individual cases. It is to be noted in this context that the admission into evidence at a trial of the accused's previous convictions has always been regarded as a potent ground of appeal and yet the courts have regularly maintained that, where previous convictions were properly admitted into evidence - for instance in order to do justice to a co-defendant - this will not form a potent ground of appeal. This is an example of the courts having to make a judgment between different desiderata.

The present applications.

The background to the present applications is that before the publications complained of, which start in April 1995, the lives of Mr Knights and his erstwhile girl friend Miss Taylforth had long been of interest to the general public. This was in part the result of her having a major role in a popular television programme with a consequential public interest in her love life, in part because of their activities together on the A1 where a police officer had made an arrest alleging activities of a sexual nature between them there which arrest had been followed by a libel action concerned with the same activities and in part because of Mr Knight's own colourful past.

It is important to set out the dates of the previous publicity. In bundle 4 of the exhibited documents there are many newspaper reports of incidents concerning these two. They start as long ago as 1989 when the News of the World published a report of Knights having been jailed for assault. In May 1989 there were further articles about the two and in December 1989 The People newspaper published an article referring to the fact that Knights had been charged with causing grievous bodily harm to an Australian businessman with whom he had been involved at the West End club, Stringfellows.

In January 1994 there was extensive reporting of the libel action brought by Miss Taylforth against The Sun newspaper in respect of the A1 incident. There was in the course of the reporting of that case a frequent reference to the fact that Knights had a prison record for violence. On Friday 14 January 1994 The Sun published a banner headline with the words "VIOLENT PAST" and a reference, chronologically, to the convictions of Mr Knights dating back to 1969. There was saturation coverage of that libel action for over two weeks including a report in The Times for Wednesday January 26 detailing, with a photograph, the criminal record of Mr Knights dating back to 1969.

There was further reference in October 1994 in The People newspaper to the fact that Mr Knights was living in Spain, including a front page article on 9 October with banner headlines referring to Knights' violent past.

On 29 October in the Daily Mirror there was a further reference to Knights having been arrested for allegedly assaulting a police officer. In November there was a reference in The Sun newspaper to the fact that Miss Taylforth had had surgery after she had been beaten up by Knights.

In January 1995 Miss Taylforth was charged with driving under the influence of drink. That inevitably brought a further reference back to the libel action.

The publicity continued into March 1995 when Knights was convicted of assaulting a police constable and was fined £2000. This was a month before the alleged assault which led to the publicity of which complaint is presently made.

It is not surprising in the light of that massive publicity over a period of some 2 years that His Honour Judge Sanders, when he was considering the question of abuse of process in October 1995, concluded that "There could not be one member of the jury who had not read something about them". He, of course, was considering the position in October, just before the trial was to begin and had to take into account more recent references in the press to the two principal participants - namely, in August of 1995 - of which the Attorney General does not complain. We have to look mainly at the situation as it existed on 17 and 18 April 1995 and in the case of the Daily Mail the situation as it existed when Lynda Lee-Potter's article was published on 13 May. At that stage the trial was several months ahead. In deciding whether the publication of any particular article created a substantial risk of serious prejudice it has to be judged as at the date of the publication in the light of the saturation publicity given over previous months, indeed years, to the relationship between Miss Taylforth and Mr Knights and in particular to the disclosures which had been made previously of Mr Knights' violent behaviour on previous occasions and his previous convictions.

In some cases where there has been reference to previous convictions in the press the passage of time may result in those references being forgotten but nevertheless a subsequent reference to them may result in the recollection in the mind of a potential juror of those convictions and the incidents on which they were based. In this case it is to be remembered that the publicity given to Miss Taylforth and Mr Knights continued until a month before the incident in April 1995.

The Publications of which complaint is made.

We have to look at each of these in the light of the principles outlined above and in the light of the foregoing history of publicity. We look at the respondents one by one.

The first respondent publishes the Daily Mirror. Complaint is made of the issues published on 18 April 1995 and that published on the following day.

The second respondent publishes the Daily Star. Complaint is made similarly of the contents of that newspaper in each of three editions published on 18 April 1995 and 19 April 1995.

The third respondent publishes The Sun and the fourth respondent published a newspaper called Today. Complaint is made of the edition of The Sun and that of Today published on 18 April. On 19 April Today published another article of which complaint is made and on 22 April and 12 May The Sun contained other material the subject of complaint.

The fifth respondent published the Daily Mail. That newspaper on 13 May contained a feature article written by Miss Lynda Lee-Potter after an interview with Gillian Taylforth, Knight's girl friend.

We now turn to the individual articles of which complaint is made.

DAILY MIRROR 18 APRIL 1995

The front page headline in letters 1½" high reads "KNIGHTS BEAT ME TO A PULP". A statement attributed to the victim with a photograph of Knights and Miss Taylforth. On page 2 there was what purported to be a further quotation from Mr Davies, the victim, and a description of his injuries as described by a police officer and a suggestion by the writer that doctors feared that he might be blinded. Page 3 was entirely given over to the account of the incident with large photographs of Knights, Miss Taylforth and photographs of the scene. The article referred to the libel case brought by Miss Taylforth in 1994.

19 APRIL 1995

On page 5 there was a photograph of Mr Knights in handcuffs arriving at court. Included in the article is a statement of his solicitor denying that he caused the injuries to Mr Davies.

As it seems to us at any trial evidence would be bound to be given or agreed as to the extent of injuries. In those circumstances we do not believe that whatever remained in any juror's mind of this description of the injuries would be likely to affect his assessment of the evidence he would hear.

Applying the principles set out earlier in this judgment we do not consider that either of these publications created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

DAILY STAR 18 APRIL 1995

On the front page of the second edition there is a reference in the main headline to Davies having been "battered with iron bar", repeated in the text of the article. That was repeated on pages 2 and 3. Knights, it is said, "went berserk with an iron bar". The suggestion is made that the motive was Knights' jealousy over the relationship between Miss Taylforth and Mr Davies. There was a further reference to Knights "wielding the bar above his head like a sword" and "pounding his head with a hard-edged weapon, the iron bar". This was wholly inaccurate : there was no weapon used. In the third edition the account has been toned down. Purporting to quote a neighbour the article contained the words "A hard-edged weapon", the reference to the iron bar being deleted from the headline and the article itself. It refers to the possibility that Davies might lose an eye.

Having regard to the evidence of the number and location of the distribution of the first and second editions we regard the chance of these coming into the possession of someone who would turn out to be a juror at the Harrow Crown Court as very remote. So far as the third edition is concerned this is not so. However applying the principles set out earlier in this judgment we do not consider that this publication created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

19 APRIL 1995

The Daily Star contained an article almost full page on page 7 referring to the fact that Knights had been granted bail with a condition that he should not contact Miss Taylforth or the "alleged victim", Davies. His solicitor read out a statement to the press denying charges. That was also reported. On the same page a report of Davies' condition in hospital again referred to the possible loss of an eye. Applying the principles set out earlier in this judgment we do not consider that this publication created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

THE SUN 18 APRIL 1995

The newspaper described the incident as "a bust up" beneath a banner headline referring to the incident on the front page. On pages 4 and 5 there was a reference to Mr Davies being "scarred for life" and looking like the Elephant Man. There were accounts allegedly given by neighbours who had been eye witnesses to the incident and who were therefore potential witnesses in any proceedings.

22 APRIL 1995

There was a large photograph of Mr Davies, Mr Knights and Miss Taylforth, showing Davies' black eyes. This article reported both the charge and Knights' denial.

12 MAY 1995

There was an article on pages 26 and 27 reporting an interview with Miss Taylforth which, in fact is a somewhat sympathetic article, albeit making reference to Knights' and Miss Taylforth's stormy relationship.

Applying the principles set out earlier in this judgment we do not consider that any of these publications created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

TODAY 18 APRIL 1995

The headline on page 1 gives a relatively short account of the incident but much material about the libel action which Miss Taylforth had brought against The Sun newspaper in January 1994.

19 APRIL 1995

On the front page there is a reference to "bust up" and on page 5 the solicitor's statement of denial was published. There was a graphic description of what were said to be Mr Davies' injuries.

Applying the principles set out earlier in this judgment we do not consider that any of these publications created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

THE DAILY MAIL 13 MAY 1995

The article by Lynda Lee-Potter purports to be based on an interview given by Miss Taylforth in which she described the stormy and violent relationship between herself and Mr Knights. There were, in that article, references to the fact that he had previously been convicted of an offence of violence and in particular a reference to the evidence which he had given in the libel action when he had been asked about his previous convictions. Despite the fact that the article occupied two pages with large photographs of Miss Taylforth and Knights, the reference to the incident on the night of the 17/18 April was really only one short paragraph with no detail as to how Mr Davies had received his injuries. The inference, however, from the context of the remainder of the article is that Knights had caused them and caused them unlawfully.

Applying the principles set out earlier in this judgment we do not consider that this publication created a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced.

Conclusion

There is no doubt that the so called 'news items' or 'articles', excluding for the moment the article on 13 May in the Daily Mail, were all written in typical graphic tabloid style. They include large banner headlines, large photographs of all three of those involved in the incident. There is a measure of exaggeration in the description of the injuries sustained by Mr Davies and the language used is undoubtedly emotive. However all in all it is difficult to see how any one of the publications in April and May of 1995 created any greater risk of serious prejudice than that which had already been created.

We are not called upon to rule upon the correctness of HH Judge Sanders' decision to stay the proceedings in front of him and nothing in this judgment should be taken as doing so. A consequence of the need in contempt proceedings, in which respondents face imprisonment or a fine, to be sure and to look at each publication separately and the need in trial proceedings to look at risk of prejudice created by the totality of publications can be that it is proper to stay proceedings on the ground of prejudice albeit that no individual is guilty of contempt. One may regret that situation or one may take the view that this is the best answer to a difficult problem. We are not called upon to express our view on that matter.

What however clearly follows from our findings is that each of

these applications by the Attorney General is dismissed.

LORD JUSTICE SCHIEMANN: For the reasons set out in the written judgment, which has been handed down to the parties and should be available to the Press, these applications are dismissed.

MISS CARSS-FRISK: I would ask for costs, on behalf of the first Respondents, to be paid out of central funds, which I understand would be the usual Order in these circumstances.

MR EADY QC: My Lord, I apply on behalf of the second Respondents, likewise.

MR CALDECOTT QC: My Lord, and I on behalf of the third and fourth Respondents.

MR CAPLIN QC: My Lord, likewise, on behalf of the fifth Respondents.

MR HAVERS QC: I have no application to be made.

LORD JUSTICE SCHIEMANN: Very well, applications dismissed; each of the Respondents' costs out of central funds. I would like to thank the parties in the case for the very helpful submissions which were made.

MR HAVERS QC: My Lords, I have an application to make. It is an application for leave to appeal against your Lordships' decision. May I begin by indicating the procedural position with regard to appeals from decisions of this court in contempt cases. Your Lordships may already be aware that the appeal lies to the House of Lords and not to the court appeal. However, whereas ordinarily leave to the House of Lords would require both leave and the granting of a certificate, in this instance the latter is not required, because it was expressly dispensed with and thus only leave is required.

My Lords, that does raise the question at the outset why is only leave required in this particular instance to appeal to their Lordship's house. The answer, I would respectfully submit, is because your Lordships' judgment is at first instance and in principle the unsuccessful party to a decision at first instance should be entitled, as of right, albeit in this instance with leave, to one appeal, at least, against the first instance decision.

On that point, may I just show your Lordships a passage from the third edition of Borrie and Lowe, Law of Contempt. I have photocopied the relevant pages. If your Lordships advance to the last of the three pages, page 538, and the second complete paragraph on that page, section 13 is apparently the section of the Administration of Justice Act which makes provisions along the lines that I have indicated: ".... apparently intended to allow one appeal as of right".

Your Lordships will see a reference there to "per Viscount Kilmuir" speaking in Parliament, and the reference there to the "Official Report" of the proceedings of the House of Lords. My Lords, that would appear to be the purpose behind the provision, although, of course, I accept, as I must do, that leave from your Lordships or from their Lordship's House is required.

LORD JUSTICE SCHIEMANN: As the author rightly says:

"..... if that is the case why is it necessary to obtain leave....."

-- which it is very difficult to obtain a satisfactory answer.

MR HAVERS QC: May I endeavour to answer that very question because it does raise the question as to how your Lordships should approach your Lordships' discretion whether to grant leave in a case such as this. I respectfully submit that the requirement of leave is intended to exclude those cases which are vexatious for one reason or another, either because they are wholly unarguable, hopeless or bound to fail.

However, if, as I would submit in a moment, an appeal against your Lordships' decision here would be plainly arguable and would plainly not be bound to fail, then your Lordships should give leave because without leave there is no way in which the correctness of your Lordships' decision can be tested on appeal.

LORD JUSTICE SCHIEMANN: Albeit leave is available from their Lordships' House. You had better set out the reasons why we ought to grant it.

MR HAVERS QC: My Lord, I will do so as briefly as I may. Firstly, although, of course, your Lordships' decision is a decision on the facts of this case, it is, and will be seen to be, of considerable importance in setting the parameters of what may or may not lawfully be published at the time of arrest. In particular, that is important because it is at the time of the arrest that the media are likely to be most interested in publishing something along the lines of what was complained of in this case, because it is then that the question will be of public interest, for example, the arrest of a particular individual. That is the arrest which is likely to promote the publication of material about him and about whatever it is he has been arrested for.

My Lords, this particular case has already attracted considerable public interest and no doubt would be widely reported, as was the decision of His Honour Sanders, who stayed the criminal proceedings.

Secondly, there will, virtually by definition, be other cases where the individual in question has already achieved a considerable public profile by reason of previous publicity; some of it, perhaps adverse or prejudicial. One need only refer to the Maxwell brothers as an example of others who have achieved such a public profile about whom the press may be minded to publish material.

If your Lordships' decision stands, therefore, the press may well conclude that they have a very considerable freedom to publish what they chose to publish about the accused and the circumstances of the offence with which he has been charged as at the time of his arrest, that being, as I say, a critical time.

My Lords, in addition, I would submit that the case raises an important point of principle in contempt of this type, namely what is the proper approach to previous publicity when considering the strict liability rules as it applies to specific publications complained of.

Your Lordships' reasoning would appear to be based, at least in part, on the previous publicity already accorded to Mr Knight and the prejudice created by it. However, your Lordship will recall that during the argument contrary arguments were put by the solicitor, namely that just because considerable adverse publicity has been accorded to a man in the past, it does not follow that the Press is free, as it were, to cast further carnage on him in the future; and, secondly, in the event of what was complained in relation to these articles was not references to previous convictions and the like, but the way in which his involvement, indeed guilt of these offences, was being portrayed.

Therefore, they are contrary arguments and the question of previous publicity is likely to arise again and is a point of principle.

My Lords, it is for those reasons I would respectfully submit, that this is an important decision and without leave it cannot be tested on appeal, and that this is a proper case for your Lordships to grant leave and allow the Attorney-General to test this decision on appeal.

LORD JUSTICE SCHIEMANN: We do not think it right to grant leave. We do not discourage the making of an application in some form of the points that you make, but the question of leave is, in part, a question of the pressure of business on their Lordships' House and whether they think fit to give this priority and others less.

Note 1   In R v West 2.4.96 Transcript CACD, Lord Taylor, LCJ, delivering the judgment of the court said that there was no doubt that the press coverage in advance of the trial was extensive and hostile to the Wests. He went on to say at p.22 that "However lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the Defence is whether a fair trial could be held after such intensive publicity adverse to the Accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the Accused cannot be tried. That would be absurd. Moreover, providing the Judge effectively warns the Jury to act only on the evidence given in Court, there is no reason to suppose that they would do otherwise."     [Back]

Note 2   Note in this context AG v Times Newspapers 11.2.83. DC where it was said that "... the course of Justice is not just concerned with the outcome of proceedings. It is concerned with the whole process of the Law including the freedom of a person accused of a crime to elect, so far as the Law permits him to do so, the mode of trial which he prefers and to conduct his defence in the way which seems best to him and to his advisers. Any extraneous factor or external pressure which impedes or restricts that election or that conduct, or which impels a person accused to adopt a course in the conduct of his own defence which he does not wish to adopt, deprives him to an extent of the freedom of choice which the Law confers upon him and is, in my judgement, not only a prejudice but a serious prejudice."     [Back]

Note 3   See Attorney-General v News Group Newspapers Ltd [1987] 1 QB 1 per Parker LJ at 18A and Attorney-General v BBC and Hat Trick Productions 11 June 1996 (unreported) where Auld LJ said at p.7: "The degree of risk of impact of a publication on a trial and the extent of that impact may both be affected, in different degrees according to the circumstances, by the nature and form of the publication and how long it occurred before trial. Much depends on the combination of circumstances in the case in question and the Court's own assessment of their likely effect at the time of publication. This is essentially a value judgement for the Court, albeit that it must be sure of its judgement before it can find that there has been contempt. There is little value in making comparisons with the facts of other cases".     [Back]

Note 4   see Attorney General v. English [1983] 1 AC 116, 141F-G (per Lord Diplock) and AG v Guardian Newspapers LTD [1992] !WLR at p.885E    [Back]

Note 5   See AG v ITN (1995) 2 All ER 370 : "Mr Moses contended that it does not follow that because a risk had been created by the broadcast (on the night before) further publication in newspapers would not create fresh and added risk of prejudice. In other words, if several newspapers published prejudicial material, they cannot escape from liability by contending that the damage has already been done, because each affords its own additional risk of prejudice, or, as it might be said, each exacerbates and increases that risk. In my judgment, that submission is correct."     [Back]

Note 6     "... the threshold of risk is not high, simply of more than a remote or minimal risk of serious prejudice." per Auld LJ in A-G v BBC and Hat Trick Productions supra note 3    [Back]

Note 7     In the words of Leggatt L.J. in A-G v ITN [1995] 2 All ER: "During the nine months that passed after anyone had read the offending articles, the likelihood is that he no longer would have remembered it sufficiently to prejudice the trial. When the long odds against the potential juror reading any of the publications is multiplied by the long odds against any reader remembering it, the risk of prejudice is, in my judgment, remote".     [Back]

Note 8     This was discussed both in Attorney-General v. News Group Newspapers Ltd [1987] QB 1 and in Attorney-General v. ITN and Ors. [1995] 2 All ER 370. As Parker L.J. explained in the former case at pp.17-18: imminence or remoteness of the proceedings will still vitally affect both the existence of a substantial risk of prejudice and the question whether, if there is such a risk, it is a risk that the course of justice will be seriously impeded or prejudiced. Both the risk and degree of prejudice will, as it seems to me, increase with the proximity of the trial but it is not possible, and indeed would be contrary to the Act, to say that no publication earlier than a certain number of months before trial could be subject to the implication of the strict liability rule. Each case must be decided on its own facts and the publication relatively close to trial may escape whereas another much further from trial will not do so by reason of the impact of its content on the reader, listener or viewer, as the case may be." In the same case Lord Donaldson M.R. at p.15 had said: "Proximity in time between the publication and the proceedings would probably have a greater bearing on the risk limb than on the seriousness limb, but could go to both".    [Back]

Note 9     In Ex parte THE TELEGRAPH PLC (1993) 1 WLR 980 C.A. Lord Taylor LCJ said at page 987 : "a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of a trial is to focus the jury's minds on the evidence before them rather than on matters outside the courtroom".    [Back]

Note 10     "It is, of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the court should not be heard to call into question the capacity of jurors to do the job assigned to them. The ramifications of any such statement could be enormous ... There are many situations where the jury is permitted to hear and use evidence relevant to one issue but not to another. In these situations, all that is required is a clear direction to the jury indicating what is permissible and what is not. For example, in some cases similar fact evidence is admissible to show some particular trait or design ... In the joint trial of co-accused, the confession of one accused is admissible against that accused only, and the jury must be instructed that such evidence cannot be taken into account in determining the guilt of the co-accused: see e.g. R v. LANE & ROSS (1970) 1 CCC 196 at 201 where Addy J stated as follows: "... I do not feel that, in deciding questions of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case, there would be no justification at all for the existence of juries, and what had been regarded for centuries as a bulwark of our democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion" (CORBETT v. THE QUEEN: Supreme Court of Canada 41 CCC 3d 385 (1988) at pages 401-3 per Dickson C.J.C.). (This case was concerned with the fairness of permitting the accused to be cross examined as to his previous convictions).     [Back]