England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SIMON BROWN: These proceedings are brought in respect of two newspaper articles published by the respondents in July 1996 which the Attorney General contends constituted a contempt of court under the strict liability rule. By s.2(2) of the Contempt of Court Act 1981 that rule applies to publications which create "a substantial risk that the course of justice in ... proceedings ... will be seriously impeded or prejudiced." One of the articles appeared in three editions of the Manchester Evening News (a newspaper edited by the First Respondent and published by the Second Respondents) on 9th July; the other appeared in the Daily Mail (published by the Third Respondents) on 10th July.

2. The article in the Daily Mail, under the headline "The home help who was busy helping herself", read as follows:

3. Mr Burgess twice captured the thief on film. Now Salford social services have suspended 51-year-old home help Jean Gilluley and launched an investigation.

4. Confronted over the theft allegations Mrs Gilluley broke down and wept. Asked if they were true, she said: ´I won't be denying them. I don't know why I took it. I have just been ill. I wanted to see a psychologist.'

5. Mrs Burgess, who has a second home help not implicated in the theft in any way, is only now beginning to accept what happened. ´It's not easy for an 82-year-old to accept when a trusted home help and neighbour has been stealing from her,' said her son."

6. That column was flanked by two photographs captioned respectively ´A video picture of the thief reaching for cash hidden in a fridge' and ´Seconds later, she pockets the money', captions which accurately describe what the photographs appear to show. The piece as a whole occupied most of the top half of page 6 of the newspaper.

7. The article in the Manchester Evening News (which varied very slightly as between the three editions), although longer than the one in the Daily Mail, was to very substantially the same effect. It being accepted on all sides that either both these articles or neither of them constituted contempts of court, it is unnecessary to refer to the differences. I should indicate, however, that the Manchester Evening News' article made plain that it was they who had "confronted [Mrs Gilluley] over the theft."

8. At the time those articles were published, proceedings were ´active' within the meaning of the 1981 Act: Mrs Gilluley had been arrested on 3rd July 1996 and charged with two offences of theft from Mrs Burgess, respectively of £20 on 29th June and £40 on 3rd July. Those were the two occasions to which the article was referring when it spoke of the thief being "twice captured ... on film."

9. Mrs Gilluley was interviewed at Swindon Police Station on 3rd July. Having initially denied everything, she was shown the video whereupon she eventually admitted the first but not the second offence. As to the latter she maintained that Mrs Burgess had told her to take the £40. The interview ended after about an hour when Mrs Gilluley collapsed.

10. On 5th July Mr Terry Burgess, the victim's son, took the story and a video cassette of the incident on 3rd July to the Manchester Evening News. He wanted to expose Mrs Gilluley as a thief. He states, however, that he obtained an assurance from the newspaper that no details or pictures would be published until after the court case. Precisely who gave this assurance is not clear and in the end does not matter. It was never apparently communicated to the editor and, even if it had been, it could not have affected the issue whether or not the publication constituted a contempt of court. Similarly immaterial to that issue is the fact that on 9th July Detective Superintendent Kerr of the Greater Manchester Police, having learned of the proposed publication, telephoned the news editor of the Manchester Evening News to make plain that Mrs Gilluley was due to appear in court on 7th August 1996 on two charges of theft, that the video recordings would be produced as an important exhibit in any forthcoming trial, and that publication of details of the case before any court appearance could be prejudicial and might be a contempt of court.

11. Meantime, on 8th July, the Manchester Evening News had sent two reporters to Mrs Gilluley's home to interview her. She told them, as the subsequent article stated, that she would not be denying the allegations. She also said "If it gets in the paper I'll take something. I can't cope."

12. Following that interview, the Manchester Evening News sought legal advice from their solicitors. On the premise that Mrs Gilluley had admitted the two offences both to the newspaper and the police (as the newspaper had wrongly understood) they were advised that they could safely publish.

13. The Daily Mail for its part consulted Mr Munby QC by telephone on 9th July. Mr Munby has deposed in these proceedings:

14. Before turning to the legal arguments, I should just complete the story. As Detective Superintendent Kerr had intimated, Mrs Gilluley duly made her first appearance before the Magistrates on 7th August 1996. The case was then adjourned at her request for four weeks to enable her to seek legal advice. On 4th September 1996 she pleaded guilty before the Magistrates to the two charges of theft and on 2nd October 1996 was sentenced to three months imprisonment consecutive on each.

15. Following correspondence between the Attorney General's office and the respective respondents in the autumn of 1996, this application was made on 21st January 1997, leave to move being granted on 24th February 1997.

16. It was, I have to say, my strong initial view in this case that the publication of these articles constituted a plain contempt of court, amounting as they did to the clearest possible statements that Mrs Gilluley was guilty of these thefts from Mrs Burgess at a time when proceedings against her for such offences were active. If ever there was a case of trial by newspaper, this surely was it. For reasons to which I shall come, however, I am persuaded that this is a simplistic and no longer permissible view of the law.

17. As is well known, however, that approach was held by the European Court of Human Rights to be in breach of the Convention. The 1981 Act was thereupon enacted which, whilst not expressly abolishing the prejudgment test, is clearly now applied as if it did. As Lord Bridge said in Re Lonrho Plc [1990] 2AC 154 at 208:

18. In short, all that Lord Diplock meant in English when he stated that trial by newspaper is not to be permitted is that a newspaper must not publish material contrary to the strict liability rule. If these articles created a substantial risk that the criminal proceedings against Mrs Gilluley would be seriously prejudiced, then they constituted a contempt; otherwise not. All this, indeed, is common ground before us. I mention it only to indicate the need to guard against a too ready assumption that newspaper articles which in earlier days would have been regarded as unthinkable are today unlawful.

19. How then does the Attorney General put this case against the respondents? First and foremost he puts it on the basis that as at the date of publication (the time when the matter has to be tested) there was a real chance that Mrs Gilluley might have elected trial by jury in which event there was a substantial risk that her trial would be seriously prejudiced. Secondly, and very much at the court's invitation, Mr Rabinder Singh submitted that there is a further way in which these publications imperilled the course of justice: they could well have affected Mrs Gilluley herself and influenced her response to the prosecution. She might, for example, have concluded that, since the entire story had now been told and her reputation ruined by these articles, there was no point in seeking to dispute charges which she might otherwise have contested.

20. Put the first way, the complaint is of possible prejudice to the outcome of proceedings; the second way alleges a more general prejudice to the course of justice in the proceedings. The respondents acknowledge that s.2(2) properly encompasses both but submit that ordinarily prejudice is alleged on an outcome basis - on the basis that the jury may be influenced by the publication - and that that certainly was the basis of the allegation here, there being no pleaded complaint that these publications had any adverse effect on Mrs Gilluley herself.

21. It is convenient to dispose first of the subsidiary point, that on which we ourselves invited argument. That articles of the nature published here, which plainly prejudge guilt, are capable of influencing an accused and thus constituting a contempt cannot be doubted. So much, indeed, is clear from the passage already cited from Lord Bridge's speech in Re Lonrho , although the reference there to influencing the conduct of a party by holding him up to public obloquy was essentially in the context of civil rather than criminal proceedings. Oddly, however, counsel between them could discover only one case in which a contempt finding had been made on this basis: A-G v Times Newspapers Ltd and Others , unreported save only in The Times for 12th February 1983. In that case contempt proceedings were brought against five national newspapers in respect of stories arising out of two notorious incursions made into Buckingham Palace by a man named Michael Fagan. Amongst the newspapers found guilty of contempt was The Sunday Times. Although Lord Lane CJ and Ackner LJ found contempt proved on the conventional basis, namely that the publications created a risk that the jury might be prejudiced, Oliver LJ found their publication objectionable on a different basis. He concluded that The Sunday Times appeared to have been "gunning" for Fagan and that that certainly had been the view of Fagan's solicitor "because it was the article which prompted him to decide that Fagan should be tried on indictment on the assault charge and that of driving away a motor vehicle without the owner's consent. It was the direct and immediate effect of the article which determined [used here to mean ´ended'] Fagan's option for summary trial and kept the assault charge hanging over him until October." Earlier in his judgment Oliver LJ had said this:

22. There, as indicated, the publication in question was established actually to have had that prejudicial effect. Here, however, the respondents point out, not merely is there is no such evidence but, for want of forewarning of this way of putting the case against them, they have sought none themselves as otherwise they would or might have done. To my mind, however, there is nothing in this point: even had the respondents been able to obtain and put before us evidence that Mrs Gilluley would have pleaded guilty before the magistrates, just as she did, irrespective whether these articles had been published, that would not defeat the argument that the relevant risk had nonetheless been created. In short, further evidence on the point could have damaged, but could not have assisted, the respondents' case.

23. That said, however, bearing in mind the criminal standard of proof required to be satisfied in these cases, I am not finally persuaded that the risk created here really was a substantial one; rather, I think, realistically it was slight: not merely had Mrs Gilluley already clearly intimated an intention to plead guilty - a consideration of obvious relevance on this part of the case, although, for reasons I shall explain, much less so on the other - but even had she for whatever reason been minded after all to contest the charges, she would hardly have been deflected from that course by these articles.

24. I turn, therefore, to the main argument, the question whether these articles gave rise to a substantial risk of serious prejudice to the outcome of any trial.

25. The important first issue to address here concerns the relevance to this question of Mrs Gilluley's clear intimation to the respondents that she would be admitting the charges. Counsel's advice to the Daily Mail, it will be recollected, was based almost entirely on the fact that Mrs Gilluley had "confessed" - that and the fact that she "had in any event been caught ´red-handed' on video". Much the same thinking appears to have coloured the Manchester Evening News' approach. As their Acting Editor has deposed:

26. For my part I regard this approach as wholly misguided and indeed pernicious. It is not to be assumed that because someone has "confessed" to a crime they will necessarily plead guilty to it, or indeed that they necessarily are guilty of it. Still less is it for the newspapers to assess the strength of the evidence against an accused and to second-guess a jury's verdict - the prospect of Mrs Gilluley "being successful in not guilty pleas should she enter them."

27. In this regard Mr Rabinder Singh very properly reminds us of Megarry J's celebrated dictum in John v Rees [1970] Ch345 at 402:

28. True, those salutary words were spoken in the context of a natural justice challenge; they nevertheless have obvious relevance in the present context too.

29. I do not go so far as to say that Mrs Gilluley's intimation to the respondents that she would not be denying these theft allegations was immaterial. In my judgment, however, on this part of the case it was only of the most limited materiality. There is always a real chance that an accused, whether caught "red-handed" or not, and however apparently strong the evidence against him, will plead not guilty and elect trial by jury and it is imperative that newspaper articles do not imperil the fairness of any such trial. In the circumstances of the present case, moreover, two particular matters should have been borne in mind by the respondents and those advising them. First, that the video film showed only the actus reus of theft and not the mens rea . It was always open to the accused to say, as indeed at interview Mrs Gilluley had said in regard to one of the two pictured incidents, that the victim had given her permission to take the money. (The respondents were, of course, mistaken in supposing that Mrs Gilluley had confessed all to the police, but such mistakes are made at their own risk.) Second, the respondents should have appreciated that the admissions made to their own reporters were not to be relied upon either necessarily as the accused's last word on her proposed plea (as to which she had yet to take legal advice) or as evidence inevitably admissible in court. Had these charges gone to trial, there was at the very least room for dispute under s.78 of PACE as to whether or not it was fair to admit this journalistic interview in evidence against her. That aspect of the case, therefore, cuts both ways: although these admissions at interview no doubt made the prospect of a trial less likely, their publication put into public circulation prejudicial material which might ultimately be held inadmissible in evidence.

30. It follows from all this that in my judgment the respondents had no business assuming that there would be no trial here, or that any such trial would be so straightforward as to be beyond the risk of possible contamination by prejudicial material. Such a view carried to its logical conclusion would, of course, allow the press to publish not merely all admissible evidence of an accused's guilt but also his or her previous convictions. Plainly that is impermissible and, to be fair, neither Mr Caldecott QC for the first and second respondents nor Mr Caplan QC for the third respondents suggested any such thing. Rather they concentrated their arguments upon the effect (if any) these articles would have had upon a jury assuming one had subsequently been empanelled. In short, whilst certainly not disavowing all reliance on the intimation and expectation of a plea of guilty here (which they urge to be a rare feature of this particular case and a factor of some importance in evaluating the overall risk of prejudice - was the risk substantial, would any prejudice be serious?), their primary submission is that even had this case ultimately gone for trial before a jury, that trial would not have been compromised by these publications. Let me now finally turn to that critical question.

31. I do not propose to rehearse here all the many authorities in which this issue has been discussed and the various important considerations highlighted. A valuable general statement of the principles governing the application of the strict liability rule is to be found in Schiemann LJ's judgment in this court in Attorney General v MGN Limited [1997] 1 All ER 456 at 460, one of a series of recent cases (another notable one being Attorney General v Independent Television News Ltd [1995] 2 All E.R.370) in which contempt motions brought under this rule have failed. Indeed, apparently the only such case to have succeeded in recent times was Attorney General v BBC and Hat Trick Productions Ltd (unreported 12th June 1996), where the offending words, about the Maxwells, were spoken by celebrities during a popular television programme and attracted from Auld LJ this comment:

32. As he then observed, however, at the end of the day the matter is one for the court to assess on the particular facts of the case.

33. Schiemann LJ's seventh principle was stated thus:

34. It is with regard to (a) that the respondents continue to urge the relevance of the intimated and expected plea of guilty here: if there was to be no jury, then there was no likelihood of the articles being read by potential jurors. For reasons already given, however, I attach little weight to this submission. As to (b), the likely impact of the article when published, there seems to me considerable force in Mr Rabinder Singh's argument that the articles here would have had a considerable impact upon the reader. It was, as the first respondent has himself deposed, a "striking fact that a home help had been ´caught in the act' of apparently stealing money from her employer on a concealed video." Doubtless it was this (and perhaps too the quaintness of the fridge as a hiding place) which gave the story its journalistic worth.

35. When, however, one comes to (c), the "crucial" matter of the residual impact of the publication on a notional juror at the time of trial, the respondents' arguments are at their strongest. Prominent amongst them is the importance in these cases of the ´fade' factor, the effect of the lapse of time, between publication and trial probably here of the order of nine months, upon the recollections of the article by any juror who had chanced to read it. This factor has been stressed in a number of the cases -see particularly A-G v Newsgroup Newspapers Ltd [1987] QB 1, ex parte Telegraph plc [1993] 1 WLR 980, and Attorney General v ITN [1995] 2 All E.R.370 - and needs no further elaboration from me. Coupled with it, moreover, is the presumption that juries will decide cases solely according to the evidence put before them and the directions they are given, a presumption central to the whole criminal process and emphasised in many of the cases, not least, of course, those decided in the Court of Criminal Appeal.

36. It seems to me important in these cases that the courts do not speak with two voices, one used to dismiss criminal appeals with the court roundly rejecting any suggestion that prejudice resulted from media publications, the other holding comparable publications to be in contempt, the courts on these occasions expressing grave doubts as to the jury's ability to forget or put aside what they have heard or read.

37. I am certainly not saying that in respect of one and the same publication there cannot be both a contempt (of the present, outcome, sort) and a safe conviction. Plainly there can, most obviously perhaps in cases where the trial has had to be moved or delayed to minimise the prejudice occasioned by some publication. But generally speaking it seems to me that unless a publication materially affects the course of trial in that kind of way, or requires directions from the court well beyond those ordinarily required and routinely given to juries to focus their attention on evidence called before them rather than whatever they may have heard or read outside court, or creates at the very least a seriously arguable ground for an appeal on the basis of prejudice, it is unlikely to be vulnerable to contempt proceedings under the strict liability rule.

38. If one asks in the present case whether, had Mrs Gilluley elected jury trial and been convicted, she could sensibly have sought to appeal on the basis of these published articles, the answer seems to me plain: I cannot think that she would even have obtained leave. Publications are most dangerously prejudicial in two particular circumstances. First, when they are published contemporaneously with the trial, because then jurors read them with particular interest rather than merely as part of an everyday media diet - the successful appeal in R v McCann (1991) 92 CAR 239 is a classic case in point here, as too is English itself, where the publishers succeeded not under s.2(2) but only under s.5. Second, when they disclose prejudicial material which is itself inadmissible in evidence, most obviously perhaps an accused's previous convictions (although their disclosure in A-G v ITN was held insufficient to constitute those particular publications a contempt). The publications here in question suffered from neither of those characteristics (unless only one counts their rather too bland reference to Mrs Gilluley's admissions). True, they told a striking story. But many such stories are told nowadays and the memory of them rapidly fades. True, too, it is unusual to report a story of criminal behaviour in terms which so unequivocally indicate the newspaper's conviction in the guilt of a named accused. But if the video evidence had been led in this case, the article in reality would have added little if anything to its impact; and if for any reason (difficult to envisage) it were not led, then realistically the case would cease to be memorable at all and no juror would be likely to link it with newspaper articles by then several months old.

39. In the result, despite my strong initial concern at the publication of these articles, I have concluded that the allegation of contempt is not made good. That being so, it would seem to me inappropriate to criticise the respondents in any way: either these publications offended the law or they did not. If they did, the respondents would have been in contempt and have had to face the consequences; given, however, as I would hold, that they did not, then the respondents were plainly entitled to publish.

40. I add only this, as a warning not a threat. Articles of this nature undoubtedly expose their publishers to a real risk of being found in breach of the strict liability rule. To publish as fact the guilt of a named person after his arrest and before his trial is not a step to be taken lightly. The risk is, moreover, heightened the more vulnerable the accused, the more high-profile the case, and the less accurate the reporting - in Fagan it was the notoriety of the case and the inaccuracies of the published stories which most influenced the findings of contempt against certain of the respondent newspapers. All those, therefore, in the business of crime reporting should recognise that articles such as these are published at their peril. They should exercise great caution. This judgment shines an amber light, not a green one.

41. LORD JUSTICE SIMON BROWN: For the reasons given in the judgments which have already been handed down, these motions fail and are dismissed. There is one factual correction to be made on page 3, line 3. The date of arrest was of course 3rd July 1996 not 3rd September. That obviously is central to the sequence of events, so could that correction please be made. There may be others, in which case we would be grateful to be told.

42. MR CALDECOTT: My Lord, I would make the predictable application for costs.

43. MR CAPLAN: My Lord, I do as well on behalf of the third respondent.

44. MR WOLFE (for MR SINGH): My Lord, I do not resist that application, save to say that it should be out of public funds.

45. LORD JUSTICE SIMON BROWN: So be it. That completes it. Thank you all for your arguments on the case.