CO/1131/2004 
Neutral Citation Number: [2004] EWHC 2859 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 25th November 2004
 
B E F O R E:

LORD JUSTICE ROSE 

MR JUSTICE PITCHFORD 

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HER MAJESTY'S ATTORNEY-GENERAL
(CLAIMANT)

-v- 

EXPRESS NEWSPAPERS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR HAVERS QC (instructed by TREASURY SOLICITORS) appeared on behalf of the CLAIMANT
MR CALDECOTT QC (instructed by LEWIS SILKIN) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	LORD JUSTICE ROSE:  The Attorney-General, with the leave of the Divisional Court, differently constituted, on 11th March 2004, seeks an order for committal for contempt against Express Newspapers, publishers of The Daily Star.  
2.	The proceedings relate to a news item on page 7 of the Daily Star on 23rd October 2003 under the headline "Bramble's Bail."The "Bramble" in question is Titus Bramble, who plays football for Newcastle United. Another footballer, mentioned in the same item, was Carlton Cole, who was on the books of Chelsea but at the time played for Charlton.  The news item identified them by name, club and, in Bramble's case, age.  A partly pixilated photograph of Bramble headed the piece. Both, according to the report, answered bail at London police stations in connection with allegations of gang rape.
3.	This item was, for present purposes, the culmination of a series of media pieces published in England and Wales by newspapers and television, on an almost daily basis, from 30th September 2003.  They related, frequently in florid terms, to the alleged rape of a 17-year old girl at the Grosvenor House Hotel by up to eight footballers on 27th September 2003.  The piece to which the Attorney-General takes exception was unique among all these publications because it identified two potential defendants in the way which I have described.
4.	The Contempt of Court Act 1981 imposes strict liability on publications addressed to the public at large.  It is common ground that the Daily Star is such a publication.  Conduct may be treated as contempt of court, as tending to interfere with the course of justice, regardless of intent to do so.  By section 2(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." 
By section 2(3): 
"The rule applies only if proceedings are active." 
It is common ground that at the time of publication proceedings were active.  The burden of proving contempt to the criminal standard rests on the Attorney-General.
5.	There is no material issue between the parties as to the relevant legal principles to be applied in relation to the statutory test.  The risk of impediment or prejudice has to be assessed at the date of publication (Attorney-General v English [1983] 1 AC 116 at 141F per Lord Diplock).  "Substantial risk" in section 2(2) means a risk which is more than remote (Attorney-General v English at pages 141H to 142C per Lord Diplock) or "not insubstantial" (Attorney-General v News Group [1987] QB 1 at 15C per John Donaldson MR) or, as Mr Caldecott prefers to express it, "real".  The risk must be practical and not theoretical (Attorney-General v The Guardian [1992] 1 WLR at 881C per Mann LJ0.
6.	It is accepted by the respondent that, in publishing this item, they did not heed the guidelines, requests and advice repeatedly issued in relation to this case from 30th September to 22th October 2003 by the Attorney-General and the Metropolitan Police.  These stated that identification was in issue and requested that suspects should not be named nor any photograph or likeness of them published.  It is conceded that there was a systemic failure at The Daily Star on the night in question and the guidelines were "overlooked".  The article would not have been published if the guidelines had been considered.  At 2.20 pm yesterday Mr Caldecott QC, for the respondent, publicly apologised to the Court for what he described as "a bad mistake".  I should point out, in fairness to those named earlier in this judgment, whose identification is central to these proceedings, that no criminal charges were brought against them or anyone else in relation to the events of 27th September.  There was insufficient evidence and an announcement to that effect was made on 8th January 2004.
7.	It has been debated before us whether hearsay is admissible in proceedings for criminal contempt and we have been referred to a number of authorities and writings which are by no means conclusive.  In my judgment, bearing in mind that such proceedings are sui generis, that in civil proceedings there has been, in recent decades, a progressive relaxation of the old exclusionary rule in relation to hearsay, that in criminal proceedings hearsay will be admissible when section 114 of the Criminal Justice Act 2003 comes into force and that there is no jury involved in contempt proceedings, there is a respectable argument that hearsay is or should be admissible and its weight should be assessed by the court in the circumstances of the particular case.  But I express no concluded view.  In the present case, I shall proceed on the basis that hearsay is inadmissible.  
8.	Almost all of the other argument to this Court has been directed to the question whether, before the publication on 23rd October, the complainant may have known the identity of these two men from other sources.  For the Attorney-General, Mr Havers QC submits that he does not have to prove the complainant did not know the identity, provided he can prove that there was a risk that she did not, as section 2 is concerned, only with creation of the risk of prejudice.  But, in any event, he submits that it is fanciful to suggest that she may have known the identities from other sources.  She told police on 29th September that she had been told that they played for Newcastle, which of course is only true of one of them, and that one of them said their name was "Carl" or "Carlton something", beginning with a "K".  On 9th October she complained that the Carl/Carlton one had engaged in a particular sexual activity to which she took exception.  She also said on 9th October that one of those involved was black, quite tall, quite slim but she was unaware of any surname.  
9.	Press coverage, Mr Havers submits, rightly, was in many respects inaccurate and Internet sites incorporated at least 12 names (most of those persons having nothing to do with the case).  Mr Max Clifford, the publicist who represented the complainant's family from 30th September would not, even if he knew the names, have wanted to tell the complainant lest he contaminated her evidence, thereby imperilling the value of a story which would be enhanced by conviction of the suspects.  
10.	For the respondent, Mr Caldecott submits that the Attorney-General must prove the creation of a substantial risk of prejudice, not merely a risk that a risk would be created.  No risk would be created if the complainant knew the identities before 23rd October and, in view of the criminal burden of proof, a reasonable doubt as to whether she knew would suffice for the respondent's acquittal.  There is, he submits, more than a strong possibility that the complainant knew the identities because of a number of pointers and because of the activities of Mr Clifford.  Mr Caldecott took us to the massive front page coverage of the story in the tabloids and broadsheets, arising no doubt from the alleged involvement of premiership footballers.  That coverage encouraged speculation as to the identity of those involved by the progressive dropping of clues.  
11.	The News of the World, on 5th October, made a variety of offensive claims about the complainant which not only provoked a riposte in The Sun on the very next day but would have spurred the complainant to find out who the men were.  The complainant knew from the outset that Newcastle was one of the relevant clubs and from 3rd October there were numerous articles referring to a Chelsea player.  Newcastle had played Arsenal on 26th September. Identification of the men through their clubs could have led the complainant to photographs of the men on the Internet.  It had been asserted in the press, on 5th October, by one accused (who claimed to have had consensual sexual intercourse) that there were only four men present, two of whom were footballers.  The ages of the four men arrested on 10th October, who included the two identified on 23rd October, had been given by the police although not attributed by them to a particular defendant.  There was no suggestion that either of the two was a foreigner.  There is only one premiership player called Carl or Carlton and he is Chelsea's only black player.  Accordingly, Mr Caldecott submits that the Court should conclude, first, it is a near certainty that the complainant must have known, in relation to both, their club, age and colour and that they are probably English.  Secondly, that it is highly probable that the complainant, her friends or family would have accessed the Newcastle and Chelsea Internet sites and, thirdly, that it is likely that she would have told her friends and family of the clues as to identity which she had.  As to Mr Clifford, submits Mr Caldecott, he was referred to and quoted in The Sun and The Mail on 6th October and The Sun on 7th October.  He had information which could only have come from the complainant.  Although he was wrong about what she had told the police, this did not mean he was wrong in claiming that she knew the identities.  The newspapers clearly knew the identities.  Mr Clifford probably knew and may have told the complainant.  There is therefore, Mr Caldecott submits, a real possibility that she knew and therefore a reasonable doubt as to whether she was ignorant.  Therefore, the publication on 23rd October is not shown to have created a risk of prejudice.  Mr Caldecott accepts that, if the complainant did not know the identities from other sources, there is no answer to the allegation of contempt.
12.	For my part, I am prepared to accept that, if there is evidence from which can properly be inferred the possibility that, prior to 23rd October the complainant knew the identity of these two men, this would afford a defence to the Attorney-General's claim of contempt.  I have no doubt that if the complainant or others close to her and reporting to her the fruits of their labours had carried out the sort of detailed research and analysis in relation to the massive media and Internet coverage of her case which has been conducted on behalf of the respondent for the purpose of these proceedings and if she or such others had been able to divine what was correct in that sea of speculation and wild inaccuracy, particularly as to the identity of those involved, the complainant would have been able to identify those whom the respondent chose to name on 23rd October and would, from the Internet, have been able to obtain photographs of them.  But there is, in my view, no evidence either that the complainant or others reporting to her did this, or that she was interested in football or footballers.  The fact is that, apart from the vague information which I earlier rehearsed, she did not identify to the police either of these two men by name or effective description in her first interview on 29th September, before Mr Clifford became involved, in her second interview on 9th October, after the blast against her in the News of the World on 5th October and counter blasts, no doubt orchestrated by Mr Clifford, on her behalf in The Sun on 6th and 7th October, or on 14th November, at the identification procedures when she picked out the two men and also two others, a photograph of one of whom she had seen in the newspaper.  
13.	In my judgment, it is extremely unlikely that if on any of these three occasions she had known the names of her alleged assailants, or seen photographs of them, she would not have told the police.  There is no evidence from which it could properly be inferred that she did know their identities.  The pointers relied on by Mr Caldecott are mere speculation and it would, to my mind, be absurd to seek to draw inferences as to the complainant's state of knowledge from media reports of what Mr Clifford had allegedly said, particularly bearing in mind the apparent falsity of some of what was attributed to him.  I therefore infer that at the time of the publication, on 23rd October, the complainant did not know who these men were.  
14.	Accordingly when, uniquely, the respondents published in a national newspaper, with a readership of millions, these items identifying these possible defendants, that created a real, substantial, more than remote practical risk that the course of justice would be seriously impeded or prejudiced.  At its lowest, the publication rendered the complainant highly vulnerable to cross-examination on the basis that her identification, whether as to who was present and who did what (and it matters not which), was tainted by what she had read, or had been told others had read, on 23rd October. 
15.	For the reasons I have sought to explain there is, to my mind, no evidence before us from which it could properly be inferred that her identification evidence might, at the date of publication, been tainted by some other route. In my judgment, contempt of court within section 2(2) is proved beyond reasonable doubt. the reasons I have sought to explain there is, to my mind, no evidence before us from which it could properly be inferred that her identification evidence might, at the date of publication, been tainted by some other route. In my judgment, contempt of court within section 2(2) is proved beyond reasonable doubt.
16.	MR JUSTICE PITCHFORD:  I agree.  I only wish to add a few words by way of explanation of my personal route to the criminal standard of proof.
17.	What the Attorney-General has to prove is that the respondent's publication created a substantial risk of serious prejudice to the course of justice in the proceedings.  Where, however, there is raised in the admissible evidence a possible concurrent source for the same risk of prejudice, the Attorney-General must prove that nevertheless the publication of itself created a substantial risk.
18.	Here, Mr Caldecott accepts that the publication without more had the potential to create serious prejudice, but submits that if the complainant knew the identity of the footballers from other sources before publication, then no contempt can have taken place, since there cannot, in that circumstance, have been a substantial risk of real prejudice created by the publication.  I accept that submission.
19.	Mr Caldecott has treated us to an impressive analysis of a large quantity of newspaper reports which, he submits, raises a real and uncontradicted possibility that the complainant did know from other sources the very information which the publication revealed.  If we accept that is the state of the evidence, then there was no contempt since the Attorney-General has not proved, so that we are sure, that the publication was responsible for any risk, let alone a substantial risk of prejudice.  The Attorney-General could only achieve the required state of proof, he submits, by tendering the confirmatory evidence of the complainant herself and of a publicist, Mr Clifford, engaged by her family in the early stages of the police enquiry.  Mr Havers responded that the analysis does not in the result demonstrate any such real possibility requiring more explicit contradiction.  It is an argument built on speculation and multiple hearsay.  With respect to the quality of Mr Caldecott's advocacy, I have to agree.  What has been demonstrated, in my view, is a probability that newspaper editors were aware of the identity of the footballers, that gossip and rumour were available on the Internet, and the complainant could, if she was so inclined, have carried out research to work out identities by a process of elimination.  Speaking for myself, I am quite unable to elevate the material placed before us to the status of a working possibility of actual foreknowledge.  There is, it seems to me, a countervailing inference which I am entitled to draw.  The evidence is that at no time before the identification procedure in November 2003, and nor on the day itself, did the complainant inform the police that she knew or believed she knew the identities of her alleged assailants.  Absent evidence of malice, I find it impossible to accept that the complainant would not have made such disclosure to the police if she had the knowledge Mr Caldecott sought to attribute to her.  She was accompanied each day or parts of the day by a police chaperone.  She was questioned closely with a view to discovery of information which would assist the identification of her alleged assailants.  
20.	In response, when faced with this proposition, Mr Caldecott attempted to erect the yet further possibility of an undisclosed commercial purpose of her own for non disclosure of this important information, assisted perhaps by her publicist, who might have known the consequences of releasing to the police the subversion of the forthcoming video identification procedure which was about to take place.  Overcoming any tendency to naivety, as I must, I am not persuaded that Mr Caldecott produced any bricks with the straw he was driven to employ.  In my view, we are left with speculative, not real possibilities founded on acceptable evidence.  Thus, I too am sure that the publication created a substantial risk of serious prejudice within the meaning of section 2(2) of the 1981 Act.
 (Submissions re: penalty and costs)
 
21.	LORD JUSTICE ROSE:  This is the judgment of the Court.  
22.	Mr Caldecott, on behalf of the respondents, advances a number of features which mitigate the penalty in this case.  First, that although publication occurred in the circumstances summarised in the main judgments, there was a procedure in place for avoiding publication.  Secondly, the respondents have no previous convictions in relation to the publication of any newspaper which they own.  Thirdly, apologies were made in affidavit form and in the course of the proceedings before this Court before liability was determined.  Next, following a telephone call from the solicitors of another man said to have been involved, steps were taken by the respondent to mitigate the damage which the publication might cause.
23.	Next, the consequences of the publication were not to cause a trial which was in progress to be stayed or aborted and, finally, Mr Caldecott drew the Court's attention to some of the earlier cases in which fines have been imposed, as set out in the main body and supplement to the second edition of Arlidge, Eady & Smith on Contempt.
24.	To all of those matters we have regard.  There is, however, as Mr Caldecott accepts, an aggravating feature in this case, namely that, for a period of some three weeks, there had been repeated guidelines issued by the Attorney-General and warnings given by the Metropolitan Police with specific reference to this complainant's case.  Those warnings and that guidance referred to the fact that identification was in issue and sought to discourage the publication of names or photographs of suspects.  The last of those warnings came on 22nd October, that is to say the very day before this publication.  As it seems to us, neither the Attorney-General nor the Metropolitan Police could have taken clearer or more persuasive steps to discourage precisely the sort of publication which here occurred.  It is also to be noted that although, as we have said, there was no trial in progress when the publication occurred, the publication was precisely what might cause a prosecution to be abandoned because of the tainting of the principal witness' evidence.  
25.	Taking all of those matters into account, taking into account also the approximate size of the Attorney-General's costs, which we order the respondent to pay, we impose a fine of £60,000.  There will be 7 days in which to pay.  Is there anything else?
26.	MR HAVERS:  No my Lord.