England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE KENNEDY: The judgment which I am about to read is the judgment of the court.

2. Last week we had before us a motion by Her Majesty’s Attorney General for an order that Associated Newspapers Ltd do pay such fine as shall seem just for their contempt in publishing an article entitled “Alcatraz-on-Thames” published in the issue of the Evening Standard for Wednesday 22nd January 1997. At the conclusion of the hearing we indicated that we found the contempt to have been proved, and we now give our reasons for that conclusion. We start with a brief summary of the background to these proceedings.

3. On 9th September 1994 six prisoners (five of them convicted IRA terrorists) escaped from Whitemoor Prison in Cambridgeshire. They were all recaptured very quickly, but during the escape a prison officer was shot and wounded, and the incident was much publicised. Sir John Woodcock, a former Chief Inspector of Constabulary, was appointed by the Home Secretary to head an inquiry into the breakout. Further lapses of security were reported thereafter, and in December 1994 the Woodcock Report was published. The publicity rumbled on, and before the six prisoners appeared at Woolwich Crown Court on 16th September 1996 to face an indictment which contained counts of breaking prison and other offences, there had been two unsuccessful applications for a stay of the proceedings on the grounds of pre-trial publicity. In dealing with one of those applications Mr Justice Maurice Kay said that “quite apart from any prejudice which may accrue from publicity consequent on the events of 9th September 1994 there is an unavoidable and potentially prejudicial element in a case such as this.” What the judge had in mind was, of course, that in order to try the case a jury would have to know that the defendants were convicted prisoners who were regarded as such a security risk that it was necessary to house them in a special unit. Nevertheless it was agreed by counsel involved in the case that there was no need to mention the offences which had led to the men being incarcerated in Whitemoor Prison, or the link with the IRA. Prosecuting counsel regarded that information as irrelevant, whereas the defence regarded it as potentially prejudicial. In September 1996, almost as soon as the trial started, that information was widely published in national newspapers (not including the Evening Standard) and the defence then made a third application for a stay of proceedings. That application was partly successful. The jury was discharged and the trial was stayed for a period of time. The trial judge, Mr Justice Maurice Kay, when giving his ruling said that there is “an enormous difference between publicity in advance and namely a long way in advance of a trial, and publicity that arises during and particularly at the very outset of the trial.” A little later he referred to the “real difference between pre-trial publicity and publicity which comes to the attention of the jury after they have been selected.”

4. In an attempt to prevent any similar mishap occurring when the trial began again Mr Justice Maurice Kay on 19th September 1996 made what he said was an order under section 4 of the Contempt of Court Act 1981. It was an order:-

5. The judge directed that a copy of the order be sent to the editors of the national press and to the BBC and ITN.

6. On 13th January 1997 the trial began again. On 14th January, following a broadcast by LBC, a further application for a stay on the ground of pre-trial publicity was refused, and on 15th January 1997 Mr Justice Maurice Kay, in the absence of the jury, reminded the representatives of the media who were in court of the history of the case and urged them to confine their coverage of the case to what was said in court in the presence of the jury. One week later the feature article with which we are concerned appeared spread over two pages of the Evening Standard. It was an article about Belmarsh Prison with two photographs of the prison and superimposed on one of those photographs were three smaller photographs of three named inmates, all of them defendants in the current trial. The caption to that large photograph read:-

7. Part of the body of the article referred to the special secure unit:-

8. On the following day the judge was again asked to stay the proceedings, and this time he agreed to do so - permanently. Part of his ruling reads:-

9. A little later in the ruling the judge said:-

10. It is clear from the affidavit evidence filed on behalf of the respondents that it was never the intention of the respondents, or any of their employees involved in the preparation and publication of the relevant article, to interfere in any way with the trial which was in progress before Mr Justice Maurice Kay. A journalist employed by the Evening Standard was commissioned to write an article on Belmarsh Prison, which he visited on Saturday 18th January 1997 in company with a friend of a prisoner, and without revealing that he was a journalist. That prisoner was not one of the defendants in the trial before Mr Justice Maurice Kay. On the basis of the information which he obtained during the visit the journalist wrote the article. He obtained the name of Magee as an inmate from an earlier article in another newspaper. A library photograph of the prison was then added to the article and superimposed on it were the three photographs of the defendants in the trial to which we have already referred. Neither the journalist who wrote the article nor those other members of the respondent’s staff who added the photograph seemed to have been conscious of the trial which was in progress at Woolwich Crown Court. The paper’s court reporter was covering another trial at Winchester, and the article was not submitted to any lawyer for consideration prior to publication. In the circumstances, and particularly having regard to the history of the case and the efforts made by the trial judge to alert the media, what happened was plainly negligent. At some level the problem should have been identified prior to publication, but there is no evidence of anyone having been contumacious, and as soon as the respondents knew what had happened the editor of the Evening Standard, Mr Max Hastings, and leading counsel attended before Mr Justice Maurice Kay on 24th January 1997 to offer apologies, which apologies have been repeated to this court. Furthermore it is clear from the editor’s memorandum to staff of 28th January 1997 that the apology was sincere, and that steps were taken immediately to try to prevent anything of a similar kind happening at any time in the future.

11. Obviously at the time of publication the legal proceedings in question, that is to say the trial before Mr Justice Maurice Kay, were active so the strict liability rule applied to the publication. That means that, regardless of intent, the conduct of the respondents can be treated as contempt of court if the publication “created a substantial risk that the course of justice in those (criminal) proceedings will be seriously impeded or prejudiced” (Contempt of Court Act 1981, sections 1 and 2). Mr Caplan QC for the respondent, reminded us that “the statutory purpose behind the 1981 Act 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” (per Lloyd LJ in AG v Newspaper Publishing plc (1988) Ch 333 at 382). Mr Caplan also invited us to focus on the word “creates” in section 2(2), and for present purposes it is agreed that we should not trouble with the word “impeded”.

12. It is common ground that in these proceedings the burden of proof is upon the Attorney General who must satisfy us beyond reasonable doubt, whereas, as he made clear when giving his ruling, Mr Justice Maurice Kay dealt with the issue of prejudice on a balance of probabilities. We have to assess the position as at the date of publication, and consider whether the publication created a substantial risk that the course of justice in the proceedings would be seriously prejudiced.

13. Lord Diplock declined to paraphrase the word “seriously”, but said at page 142C that if:-

14. Turning to the particular circumstances of this case Mr David Pannick QC for the Attorney General invited us to consider the importance which English and Commonwealth Courts have attached to jurors not knowing any more than they need to know of the previous convictions of an accused. In Hinch v Attorney General for State of Victoria [1987] 164 CLR 15, where the High Court of Australia was dealing with proceedings for contempt, Mason CJ said at page 28:-

15. That, Mr Pannick submits, is the position in the present case.

16. Mr Caplan submits that here there had been such pre-trial publicity that in reality there was nothing of any significance left for the jury to learn, and he invited our attention to the decision of this court in AG v MGN Ltd [1997] 1 All ER 456, where the same argument was advanced in relation to the pre-trial publicity of the relationship between Miss Taylforth and Mr Knights. At page 463H Schiemann LJ accepted that:-

17. But, as Mr Pannick pointed out, that is not an argument which will always prevail. In AG v ITN Ltd [1995] 2 All ER 370, Leggatt LJ said at 381D that counsel for the Attorney General was correct when he submitted that:-

18. Having considered the law which we have to apply, we can return to the issue as formulated by Mr Caplan in his skeleton argument. The sole issue, he submits and we accept, is whether the article in question created a substantial risk that the proceedings would be seriously prejudiced. Mr Caplan points out that the rationale for keeping information about previous convictions from a jury is often expressed in broad terms, as, for example, in AG for NSW v Willisee [1980] 2 NSWLR 143, where Moffitt P said at page 150 that there is a “popular and deeply rooted belief that it is more likely that an accused person committed the crime charged if he has a criminal record and less likely if he has no record.” That rationale, Mr Caplan submits, cannot have much application to the present case because the jury knew and had to know that the defendants had been convicted of very serious offences. Mr Caplan submits that, leaving pre-trial publicity aside, in reality the jury were probably able to deduce that some at least of the defendants were IRA terrorists because:-

19. Mr Caplan further submitted that, quite apart from what the jury could deduce, some at least of them would probably have been able to recall some of the pre-trial publicity, which included publicity as to the offences of which the defendants had been convicted, as well as the fact that five of them were members of the IRA. That the publicity did contain that material is clear from the schedules and samples which Mr Caplan invited us to consider. He reminded us that juries frequently are asked to put out of their minds certain classes of information, sometimes including part of the evidence they have heard in court, and our attention was drawn to the decision of the Supreme Court of Canada in Phillips v Nova Scotia [1995] 98 CCC 3d 20 where Cory J said at page 72:-

20. Mr Caplan submits that with the same goodwill and good sense a jury should be able to disregard a newspaper article published during the course of the trial. In the present case he submits that the Attorney General should only be held to have discharged the burden of proof which lies upon him if we are satisfied that there was a substantial risk of the jury concluding either:-

21. Mr Caplan submitted to us that we should not be satisfied with either of those matters, and he expressly invited us not to give undue weight to the decision of the trial judge who, as we accept, was applying a different standard of proof.

22. We accept that this case is unusual in that the jury knew from the outset that all six defendants had been convicted of serious crimes, and that it was considered necessary to house them in a special secure unit. For the reasons advanced by Mr Caplan some jurors may well have deduced that some at least of the defendants were IRA terrorists, and some jurors may also have recalled something of the pre-trial publicity, even to the extent of recalling that some of those involved in the Whitemoor escape were members of the IRA. That was all information which the jury could reasonably be expected to put on one side when they came to assess witnesses and to deliberate about the case. But the article in question was something different. No juror who saw it could fail to be gripped by it. So far as he or she was concerned this was not just a feature article about a prison which the juror might or might not choose to glance at before turning the page. It was an article which gave the newspaper-reading juror specific information about three of the six men who were defendants in his current case. All three were members of the IRA. Magee was a double murderer, and the other two had been convicted of conspiracy to cause one or more explosions. At the trial the defence being advanced was that the fence of the prison was cut by prison officers creating an escape route which the defendants did no more than exploit. Much was therefore bound to turn on the credibility of the prison officers called by the prosecution, and upon the credibility of the defendants if, in due course, they chose to testify. Plainly, as it seems to us, the publication of the article, occurring when it did, was likely to have loaded the scales in favour of the prosecution in a way which no judicial warning could redress. There being no longer any room for doubt as to membership of the IRA so far as three of the defendants were concerned the jury, however anxious they may have been to keep an open mind, might well have found it easier to accept involvement of the defendants in a sophisticated escape, and easier to reject the evidence of three men who they now knew to have been convicted of particularly nasty terrorist crimes. We do not have to be certain that the defendants would have been disadvantaged in either or both of those ways, but we do have to be satisfied, and are satisfied so that we are sure, that the publicity created a substantial risk that the course of justice in the proceedings in question would be thus seriously prejudiced. That is why at the conclusion of the hearing we found the contempt to have been proved.

23. So long as it is accepted that the interests of justice require that in general jurors should not be told about the antecedents of an accused it must follow that a publication like this during the course of a trial will be in danger of being regarded by this court as creating a substantial risk that the course of justice in the proceedings will be seriously prejudiced. With potential jurors receiving information in so many different ways high profile cases would become impossible to try if jurors could not be relied on to disregard much of the information to which they may have been exposed, but that does not mean that they can be expected to disregard any information, whenever and however it is received, otherwise there would be no point in withholding from them any relevant information, however prejudicial in content or presentation, hence the need for the law of contempt which we are required to enforce.

24. In deciding the amount of the fine we must consider the seriousness of the interference with the due administration of justice, the culpability of the offender and the offender’s means. This contempt had a very serious effect on the administration of justice in that it forced Mr Justice Maurice Kay to abort a very important criminal trial in which the six defendants faced serious charges. If the defendants were guilty of the charges they faced it is some comfort that they must still serve substantial sentences for other offences, but in the trial that was aborted justice was not done, and very substantial costs must have been incurred to no effect. As we have said earlier in this judgment, we accept that the respondents never intended to interfere with the criminal trial, and we are satisfied that they would not have acted as they did if they had even suspected that their actions might have that effect. But, as Pill LJ said in AG v Piers Morgan and Newsgroup Newspapers Ltd (15th July 1997, unreported) if an erroneous judgment is made the effect upon the administration of justice may be very serious, and that must be reflected in the penalty. In the Piers Morgan case a prosecution in respect of counterfeit currency had to be stayed. In the present case the criminal proceedings were of even greater moment. We accept that we are dealing with a newspaper which has never previously been found to be in contempt, and which seems to have behaved in exemplary fashion since this matter came to light. We note the apology to the trial judge and to this court, and the steps taken to prevent a recurrence. This negligent mistake, for such it was, has already cost the respondents dear. In addition to the costs of legal representation before the trial judge, the respondents must, as they accept, bear their own and the Attorney General’s costs in this court. But that, in our judgment, is not in itself a sufficient penalty. This was a serious contempt. In the editor’s own words what happened was a fiasco, a failure of judgment and procedure in the newspaper’s office which had very serious results. We consider that the gravity of the contempt is such that it must result in a significant penalty. Because of the mitigating features to which we have referred we consider that the penalty can be less than that which was imposed in the Piers Morgan case . The penalty we impose is a fine of £40,000.

25. MR McCORMICK: It is accepted by the respondents that they should pay the Attorney's costs. In those circumstances I would ask for that order.

26. LORD JUSTICE KENNEDY: There is no objection to that. That was accepted on the last occasion and there will be an order accordingly.

27. MR McCORMICK: My Lord, all I would add is that the defence are not in a position today to deal with the appropriacy or otherwise of seeking leave to appeal. We would wish to take the advice of leading counsel and if so advised we would return to court within the next 14 days.

28. LORD JUSTICE KENNEDY: Within the next seven days. The reason for that is that certainly Smith J, and possible Timothy Walker J, will not be readily available thereafter. If any application is to be made, it must be made not later than Friday of next week.

29. MR McCORMICK: Very good, my Lord.