England and Wales High Court (Administrative Court) Decisions

1. MR J HYAM for MR P HAVERS QC (Instructed by The Treasury Solicitors) appeared on behalf of the Appellant.

2. MR D PANNICK QC (Instructed by Crockers Oswald Hickson, 10 Gough St, London EC4A 3NJ) appeared on behalf of the Respondent.

3. Crown Copyright

4. By these proceedings the Attorney General seeks to have the respondents fined for contempt. He applies under the strict liability rule in respect of a newspaper article published in the Birmingham Post which caused a criminal trial then in progress at the Birmingham Crown Court to be halted and started afresh ten days later before a different jury at a different venue. The trial had begun on 9th April 1997. There were eight defendants. All eight were at that stage charged with conspiracy to rob and with the murder of Jason Wharton; five were charged also with possession of firearms with intent to endanger life, and two (Christie and Myles) with the attempted murder of Christopher Wayne Nicholas. Following the retrial (during which there was some alteration of those charges), all eight defendants were convicted of conspiracy to rob; Christie and Myles were convicted also of possessing firearms with intent to endanger life; Myles also of the murder of Wharton and of wounding Nicholas with intent to do him grievous bodily harm; Christie also of the attempted murder of Nicholas. The sentences imposed ranged from five years imprisonment to life imprisonment. Both trials were presided over by Harrison J.

5. The Birmingham trial began with two weeks of legal argument. The jury were not empanelled until 23rd April. On 24th April, leading counsel for the Crown, Timothy Raggatt QC, made his opening speech to the jury. On 25th April the Crown’s principal witness began giving his evidence. On the next day, Saturday 26th April, appeared the article complained of. It was entitled: “When the Guns Took Over the Streets” and was introduced as follows:

6. It occupied most of page 41 (the inside back cover of the Arts and Entertainments Section) of The Birmingham Post. The article described both the attempted murder of Nicholas (known also as President Sass) and the murder of Wharton (known also as Bubbler). It asserted that the attempted murder of President Sass had been carried out by “members of a notorious local gang”, who were also described as “the home boys”, and asserted that the murder of Bubbler had also been carried out by “the home boys”. The article as a whole described how the “home boys” (mentioned ten times in the article, albeit once as “the home boy gangs”) were involved in a “drug war” with the “Yardies” (Jamaican criminals), and it associated the gang with other very serious criminal offences arising out of drug dealing and related gangland activities. These other offences included the shooting of a Yardie known as “Junior Chaplin” and another known as “Yardie John” and “open gun play on the street.” The article concluded with the description of an incident in November 1996:

7. Mr Raggatt’s opening had stressed as a central thread of the Crown case in relation to all four counts that the defendants were part of a “team” known to some as the “Johnson Crew” who had acted together in an escalating series of robberies and violence. The defendants throughout had denied belonging to any team or gang or group whatever. Mr Raggatt had referred to both Nicholas and Wharton by their other names too, “President Sass” and “Bubbler”. It was, however, no part of the Crown’s case and never suggested to the jury that the offences charged were in any way connected with drug dealing or drug wars or related gangland activities. The victims rather were suggested to be members of the public unacquainted with the defendants, merely unlucky enough to become their victims. The description given in the article of the murder of “Bubbler” was in a number of important respects quite different to that opened to the jury. The attempted murder of “President Sass” too was differently described. A striking feature of the Crown’s evidence against both Christie and Myles was that on arrest (in Christie’s case within ten minutes of Bubbler’s killing) they were found to be wearing bullet-proof vests.

8. On Monday 28th April the article was brought to the Judge’s attention and, following a short hearing (the transcript numbers only eight pages), the jury was discharged. The Birmingham Post is a leading Birmingham newspaper and it was quite plain to all (indeed, has never since been disputed by the respondents) that the article was likely to have been read by some at least of the jurors. Although none of the defendants were identified in the article, counsel for each regarded it as prejudicial to their trial and unanimously applied for the jury to be discharged. Mr Nigel Salts QC for Christie said:

9. Mr Raggatt too submitted:

10. Mr Raggatt had earlier said:

11. Unsurprisingly in those circumstances, (but nevertheless, submits Mr Pannick QC for the respondents, unneccessarily), Harrison J thereupon discharged the jury.

12. To complete the history, the following day, 29th April, the editor of the newspaper attended before the Judge in person and through counsel explained the circumstances in which, mistakenly, the article had come to be published. Its connection with the trial had not been made by those responsible for its publication:

13. The Judge then referred the matter to the Attorney General.

14. On 8th May 1997 the trial recommenced at Leicester Crown Court. On 25th July 1997, after fifty-five working days, the jury returned their verdicts. On 28th July 1997 the defendants were sentenced.

15. The critical issue before us is plain enough: did this publication offend against the strict liability rule? Was it, in other words, “a publication which creates a substantial risk that the course of justice in the proceedings in question were seriously impeded or prejudiced” within the meaning of s.2(2) of the Contempt of Court Act 1981?

16. Clear it is that a “substantial risk” is a risk which is more than remote and not merely minimal - see A.G. v English [1983] 1 AC 116 at 142 and A.G. v News Group Newspapers Limited [1987] QB 1 at 15. Clear too that the assessment of the risk falls to be made as at the date of publication - see English at 141. Clear finally that the burden lies on the Attorney General to prove his case to the criminal standard - see A.G. v Independent Television News Limited [1995] 1 AER 370 at 375.

17. But what in this context is to be regarded as seriously impeding or seriously prejudicing the course of justice in proceedings, and what is the relationship between the two? The approach and answers to these questions are altogether less clear and are by no means agreed between counsel.

18. Mr Pannick submits that in the present context the word “impeded” adds nothing to the scope or proper understanding of the strict liability rule and that it is for this court to judge for itself whether the publication gave rise to a substantial risk that the defendants’ trial at Birmingham Crown Court was seriously prejudiced. We should, he submits, attach only limited importance to the decision in fact taken by the trial judge to discharge the jury and change the venue. These submissions are, I should note, fully consistent with concessions expressly made by Mr Pannick when acting for the Attorney General in comparable proceedings respectively in A.G. v Morgan [1998] EMLR 294 and A.G. v Associated Newspapers Limited (unreported 31st October 1997).

19. The reasons for such an approach, Mr Pannick submits, are essentially three-fold. First, because a different standard of proof applies depending upon whether the trial judge is considering whether or not to stay the criminal trial (permanently as in both those cases, or temporarily as here) - the balance of probabilities -, or whether this court is considering a contempt application - beyond reasonable doubt. Second, because any other approach would involve the publishers having to ask themselves in every case not whether the publication creates a substantial risk of serious prejudice but rather whether it creates a serious risk that a judge may reasonably, but wrongly (i.e. strictly unnecessarily), decide to stay the proceedings. Third, because, if the trial judge’s decision has only to be reasonable to support a contempt application based on the impeding limb of s.2(2), then publishers would routinely need to be represented before the trial judge to ensure that their arguments on prejudice are not preempted. Putting this third consideration the other way round, Mr Pannick points out that whereas ordinarily the trial judge will not have had the benefit of the publishers’ submissions on law and fact, plainly the Divisional Court will. As the respondents’ editor deposes here:

20. Mr Philip Havers QC contends for a different approach. He submits that nothing could more obviously seriously impede the course of justice in proceedings than a stay, and if a publication gives rise to a substantial risk of such a stay then the criteria of s.2(2) are satisfied. If, of course, it was unreasonable, in the sense of being wholly unnecessary, for the judge to have stayed the proceedings, then there would be no contempt. But that is because there is only a remote risk that a publication will result in an unreasonable order for a stay.

21. This is the approach for which over the years Mr Havers has argued when appearing for the Attorney General and, certainly in two cases he has put before us, it appears implicitly to have been accepted: A.G. v BBC (10th December 1991 unreported save briefly at 1992 COD 264), and A.G. v BBC and Jones (1st December 1995, unreported). In a reserved judgment in the 1991 case ( BBC) - where there had been no stay of the criminal proceedings and where in the event the accused was acquitted -Watkins LJ said this:

22. Mann LJ and Roch J both agreed.

23. The facts of the second case ( BBC and Jones ) were unusual: in the event the accused pleaded guilty before the relevant broadcast came to his attention and before, therefore, any decision had to be taken as to a stay. Contempt was nevertheless found established. Staughton LJ observed that the broadcast might have occasioned an application for a stay and continued:

24. Rougier J added:

25. At first blush these rival approaches appear irreconcilable. Either s.2(2) is satisfied whenever it is proved to have been “on the cards” that the jury would have to be discharged - and a fortiori therefore whenever they reasonably have been discharged - or essentially the court should put on one side the risk or fact of discharge and ask instead whether there was a substantial risk that the proceedings, had they continued, would have been substantially prejudiced. In the last analysis, however, as I shall attempt to explain, I question whether there really is so great a difference between the two approaches.

26. It seems to me helpful at this stage to recognise the three distinct situations in which a court may find itself required to consider whether a particular publication has given rise to a risk of prejudice. The question may arise before a trial judge considering whether to stay criminal proceedings (temporarily or permanently). Or it may arise on an appeal against conviction before the Court of Appeal (Criminal Division). Or it may arise on a contempt application in this court.

27. Mr Pannick submits that the trial judge’s task when considering a stay application is very similar to that of this court exercising its contempt jurisdiction: both, he argues, have to ask themselves whether the publication created a significant risk of serious prejudice, albeit in answering the question they must apply different standards of proof. As Kennedy LJ noted in Associated Newspapers Limited , Maurice Kay J there, when permanently staying the prosecution arising out of the escape of prisoners from Whitemoor Prison, had directed himself:

28. Mr Pannick draws our attention also to the decision of the CACD in McCann (1993) 92 CAR 239, quashing the convictions for conspiracy to murder of three Irish appellants found in the grounds of the then Secretary of State for Northern Ireland, Tom King, following broadcast interviews with Mr King and the former Master of the Rolls. I need read two passages only from the court’s judgment given by Beldam LJ:

29. Does it follow from all this, however, as Mr Pannick would appear to submit, that a given publication ought more readily (because of the differing standards of proof) to result in a stay than in a finding of contempt? I cannot think so. Would not the irresistible logic of this approach be that, unless the trial judge stays the proceedings, then almost by definition there can be no contempt (unless, as in McCann, it is ultimately held that there should have been a stay), still less a contempt as well as a safe conviction. That the argument is flawed seems to me amply demonstrated by a number of the authorities.

30. There was no stay of the respective proceedings and yet strict liability contempt under s.2(2) was found established in BBC, in BBC and Jones , in English and in A.G. v BBC and Hat Trick Productions Limited [1997] EMLR 76. The first two of those cases I have already sufficiently discussed. In English, the publishers’ appeal succeeded under s.5 but not under s.2(2). The article in question had appeared on the third day of the trial and, although there was no application to discharge the jury, Farquharson J, the trial judge, expressed his serious disquiet about it. Lord Diplock at page 412 said this:

31. Lord Diplock had earlier said:

32. As it happens, in all those cases (save BBC and Jones where the accused pleaded guilty before himself learning of the broadcast) the defendants were ultimately acquitted. But assume they had been convicted. Would it have followed that their convictions would have had to be quashed on the ground that their trials had been prejudiced? In my judgment plainly not.

33. It seems to me necessarily to follow (although it is right to say that no specific authority was produced to us which directly establishes the point) that one and the same publication may well constitute a contempt and yet, even though not substantially mitigated in its effect by a temporary stay and/or change of venue, not so prejudice the trial as to undermine the safety of any subsequent conviction. To my mind that can only be because s.2(2) postulates a lesser degree of prejudice than is required to make good an appeal against conviction. Similarly it seems to me to postulate a lesser degree of prejudice than would justify an order for a stay. In short, s.2(2) is designed to avoid (and where necessary punish) publications even if they merely risk prejudicing proceedings, whereas a stay will generally only be granted where it is recognised that any subsequent conviction would otherwise be imperilled, and a conviction will only be set aside (at all events now, since s.2 of the Criminal Appeals Act 1995) if it is actually unsafe. Whilst, therefore, it is correct to say that the Attorney General has to prove a contempt application beyond reasonable doubt, one must also bear in mind, as Auld LJ observed in Hat Trick Productions , that “the threshhold of risk is not high.”

34. I would like at this stage to revisit what I said in A.G v Unger [1998] 1 CAR 308 at 318:

35. I was there envisaging a publication being held in contempt even though it does not require (to ensure a safe conviction) the trial to be moved or delayed, provided only it requires some extreme direction to be given to the jury “or creates at the very least a seriously arguable ground for an appeal on the basis of prejudice.” Put aside the need merely for a special direction (which, if it stood alone, would perhaps be a debatable basis for a finding of contempt). I still think that to create a seriously arguable ground of appeal is a sufficient basis for finding strict liability contempt.

36. Clearly it is a relevant consideration too when a judge at first instance is deciding whether or not to grant a temporary stay. But more particularly the trial judge will ask himself: is there a real danger that the jury cannot reach a just verdict, or the defendant have a fair trial? The judge will have to form a view as to just how seriously prejudicial the publication is, to what extent it can be mitigated by special directions, how desirable it is to avert a possible risk of a successful appeal on that ground (see Rougier J’s dictum above), and how inconvenient and costly in the particular circumstances a stay would be (depending in large part no doubt on how far into the trial the problem arises). In reaching his decision the judge will of course bear well in mind the many powerful and authoritative dicta summarised in the passage I have already cited from Auld LJ’s judgment in Hat Trick Productions, and emphasised afresh by Lord Taylor CJ in West [1996] 2 CAR 374, to the effect that juries generally can be expected to comply with their oaths and to decide cases solely according to the evidence put before them and the directions they are given. Mr Pannick not surprisingly lays great stress on these. But, as Mr Havers points out, 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.

37. It seems to me to follow from all this that the questions being asked respectively by the trial judge when considering a stay and this court when considering a s.2(2) application are by no means the same and it is for this reason that a decision to grant or refuse a stay will not necessarily be determinative one way or the other of whether a contempt is established.

38. That said, however, I find it difficult to envisage a publication which has concerned the judge sufficiently to discharge the jury and yet is not properly to be regarded as a contempt. I conclude that the only situation in which realistically that is likely to arise is where, analysed with the benefit of argument from the publishers’ counsel, the publication is seen to have been so little prejudicial as not even to have given rise to a seriously arguable ground of appeal had the trial been allowed to continue and proceeded to conviction. I venture to doubt whether many stays will have been granted in these circumstances. Rather, as the cases show, it is altogether more likely that a stay will have been refused (or perhaps not even sought) and yet the publication nevertheless be in contempt.

39. In short, whilst I prefer Mr Pannick’s approach to that of Mr Havers’ with regard to “impeding” and the true juridical relationship between a stay and this court’s contempt jurisdiction - namely that a stay does not of itself prove contempt and still less is it sufficient for the Attorney General to prove that one was merely “on the cards” - it seems to me highly likely to be a telling pointer on a contempt application. Mr Pannick himself acknowledged that this court may be heavily influenced by the trial judge’s view; he will, after all, have been deeply immersed in the trial and have had a panoramic view of the issues arising. And that indeed is so even in circumstances where the judge has not thought it necessary to stay the proceedings - see the passage already cited from Lord Diplock’s speech in English. It is for these reasons that practically speaking there is little difference between the rival approaches: both will generally lead to the same result.

40. All this, I should make plain, is in the context of cases like the present where (a) the publication occurs during the trial, and (b) there is no question of other prejudicial publications complicating the position (as, for example, in A.G. v MGM Limited [1997] 1 AER 456.)

41. It is time (high time) to return finally to the particular publication here complained of and to Mr Pannick’s submission that in fact it occasioned no serious prejudice whatever to the criminal trial then under way. This is, he argues, a most unusual case: the crimes described by this article were undoubtedly committed and there was nothing directly said either to identify these defendants or to suggest that it was they who had committed them.

42. This is not, however, an argument I can accept. Despite the respondents’ analysis I remain unpersuaded that the contents of the article can realistically be distanced from the true issues arising at trial. Rather it seems to me that there are a number of ways in which this article jeopardised the fair trial of these defendants. In the first place, it put a very grave complexion indeed upon these offences and suggested not merely a coherent motive behind them but a clear link between them. Given that a sufficient connection were to be established between any of the defendants and any of the counts they faced, the article would tend to suggest they were likely to be guilty on all counts. Second, were the Crown to disprove the defendants’ denial of being involved in any gang or group, the jury could all too easily leap to the conclusion that their group was indeed the “notorious local gang”, “the home boys”. Third, the discrepancies between the descriptions of the murder and attempted murder given respectively in the article and by Mr Raggatt would inevitably tend to confuse the jury and cause them to speculate and perhaps even conclude that evidence was for whatever reason being withheld from them. Fourth, there was a real danger of the jury linking the defendants with “the home boys” simply by virtue of two of them having been arrested wearing bullet proof vests. I realise, of course, that these arrests took place some nine months before the incident described at the conclusion of the article. It may be doubted, however, whether the jury would have noticed that fact or, if they had, whether they would immediately then have regarded it all as mere coincidence.

43. Mr Pannick suggests that the judge should simply have ignored the article, made no mention of it to the jury, and relied upon the weeks of trial to ensure that they would forget it and focus instead exclusively upon the evidence adduced before them. I cannot agree. Given the particular interest with which some members of the jury at least must inevitably have read this article (appearing two days after the opening), it seems to me all too possible that it would have coloured their approach to the whole trial, and in particular their view of the evidence as it was actually elicited before them. In short, even with the benefit of Mr Pannick’s detailed submissions and having well in mind the long line of dicta encouraging reliance on juries to decide cases strictly on the evidence before them, I am satisfied that the judge here was right to start this trial afresh. Discount as one may the forensic rhetoric of counsel’s submissions before him, I believe that had the trial been allowed to continue the defendants would indeed have had seriously arguable grounds for an appeal.

44. As I would apply s.2(2), it follows that the article created a substantial risk that the Birmingham trial was seriously prejudiced, a risk here averted by the stay and change of venue. It adds nothing to say that the course of justice was in the result seriously impeded, but for good measure it undoubtedly was. Accordingly I find the case proved.

45. What then should be the fine? Clearly an aggravating feature of the contempt is the effect it actually had on the due administration of justice: the need to discharge the jury and start afresh with all the inconvenience and expense that that involved. This has been fully detailed in the evidence before us and includes such items as the extended period for which the principal Crown witness had to be kept in protected police custody, the additional cost of police escorts following the move to Leicester, and the like. The total additional expense is put at some £87,000. As against that, however, it must be remembered that a temporary stay and change of venue as here is much preferable to a permanent stay of proceedings such as resulted from the contempt in Associated Newspapers Limited (which attracted a fine of £40,000). And yet nobody there thought to calculate the wasted costs of that investigation and prosecution, let alone the cost to justice in having to abandon it.

46. There are, moreover, certain mitigating features of the present case, notably that (a) this is the first finding of contempt against the respondents, (b) theirs is a regional rather than a national newspaper, with a modest circulation of some 26,000, and (c) so far from this publication having involved the conscious and deliberate taking of a risk of contempt with a view to selling the newspaper, it was published rather by mistake - a failure of communication between the features and news departments. That mistake has been taken seriously and proper procedures are now in place to ensure the necessary liaison between departments and there by guard against any recurrence.

47. As a final aspect of mitigation Mr Pannick advances the editor’s “unreserved apology” to the court. Given, however, that the contempt allegation has been vigorously (although of course perfectly properly) contested, it is difficult to know quite what is meant by “unreserved” or to place very much weight upon this particular plea.

48. Undoubtedly the most helpful recent precedent is Associated Newspapers Limited where, as stated, the contempt was punished by a fine of £40,000. That case, like this, involved a negligent mistake which, as Kennedy LJ observed, had already cost the respondents dear in that, besides their fine, they had to bear their own and the Attorney General’s costs in the proceedings. So too here. The Court there had regard to the £50,000 fine imposed in Morgan, another case involving a permanent stay but one where the publication was calculated rather than the result of a mistake. Finally Mr Pannick points to Hat Trick Productions where the two respondents were each fined £10,000 for what Auld LJ described as “a most serious contempt” following a decision to publish “of the risk-taking variety.” To my mind, however, that case was of an altogether different character and provides little assistance with regard to penalty.

49. Taking account of all the various features of the present case, I would impose a fine here of £20,000.

50. Mr Justice Thomas: I agree.

51. In the case of a criminal trial, the conclusion reached (from the authorities and the legislative intention in s. 2 of the Contempt of Court Act 1981) is that a newspaper should not publish material which, after taking into account,

52. It follows from this conclusion that the questions for the trial judge and the Divisional Court are, as my Lord has stated, 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; the test is best expressed in terms of giving rise to “a seriously arguable ground of appeal” as phrases such as “seriously arguable issue” are less precise and do not make clear that the threshold is a high one.

53. It also follows that the courts are not speaking with two voices, because the fact that the trial judge goes on with the trial does not mean that, on appeal, there might be no seriously arguable point that he should have taken a different course; the decision of the trial judge is therefore not necessarily decisive.

54. The conclusion at which the courts have arrived (as I have endeavoured to summarise it) has, it seems to me, been reached by the two approaches that are available from the wording of s. 2(2).

55. However I do not think it is helpful, if indeed it is possible, to over analyse the language of s. 2(2). It is very difficult not to express the prejudice by reference to risk and the risk by reference to prejudice. I therefore entirely agree with the test combining the two approaches which my Lord has so clearly set out in the judgment he has given.

56. LORD JUSTICE SIMON BROWN: For the reasons given in the judgments which have already been handed down, we find this contempt proved and impose a fine of £20,000. It is implicit in our judgments that unless there is some surprising argument to the contrary, the Respondent will have to pay the Applicant's costs. Mr Pannick?

57. MR PANNICK: My Lord, I have no surprising arguments. My Lord, I do have one request, and that is for leave to appeal to their Lordships' House.

58. My Lord, there are two points of law of general importance in my submission: the first is the relationship between the principles to be applied on a contempt application and the principles to be applied by the Crown Court Judge when considering whether to stop a trial or indeed, the Court of Appeal when considering an appeal against conviction. That is the first issue of general importance.

59. The second is the weight to be attached on a contempt application to the statements of members of the judiciary from Mr Justice Lawton onwards, that juries can be trusted to concentrate on the evidence and to put out of their minds extraneous material. My Lord, that is a point of some very considerable importance. One does have various judicial reviews in all contempt applications that are heard by this Court, the same general arguments are advanced on each side. I hope it is fair to say that different judges react in different ways to the strength that should be attached to these statements. In my submission, it is high time that the matter was looked at by their Lordships' House. I am not aware they have looked at the matter since the English case.

60. LORD JUSTICE SIMON BROWN: That was 1980, I think.

61. MR PANNICK: I think it was 1982. My Lord, it is a long time ago.

62. LORD JUSTICE SIMON BROWN: It was reported in 1983.

63. MR PANNICK: A lot has happened since then, and it is high time that their Lordships looked at the matter again. That is my submission.

64. LORD JUSTICE SIMON BROWN: Mr Pannick, of course, this is not to be regarded as a frivolous application as it is an interesting and difficult area, but it is not one that we would force upon their Lordships' House. You will have to ask their Lordships for leave.

65. MR PANNICK: Thank you, my Lord. Can I ask for one other matter, I hope less controversial, I ask for 28 days to pay the fine.

66. LORD JUSTICE SIMON BROWN: I doubt the Attorney would wish to resist that.

67. LORD JUSTICE SIMON BROWN: Thank you for your helpful arguments.