England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		15 July 2008

1. LORD JUSTICE PILL: This is an application by HM Attorney General for an order for committal or such other order as may seem just against ITV Central Ltd, the defendant, for contempt of court by broadcasting a news item on 2 October 2007. A fine is the only possible sentence in this case.
2. On 2 October 2007 the trial was due to commence at Leicester Crown Court before Mr Justice Treacy and a jury of five defendants charged with the murder of Kevin Noons in 2002. The trial had already been moved from a different venue in the Midlands because of a previous conviction of one of the defendants, Levy Walker, of an offence of murder. On the morning of the trial, at 6.35, 7.05 and 8.5 hours, the defendant broadcast a news item during GMTV's breakfast news programme referring to the impending trial. The programme is described on behalf of the defendant as a "pan-regional bulletin across the East and West Midlands", an area that included Leicester. On each occasion the news reader stated that Walker had a previous conviction for murder for which he was currently serving a sentence of life imprisonment. It was stated - and we were told that each broadcast lasted for 23 seconds -

"Five men are due in court later charged with the murder of an amateur footballer. Kevin Noons' body was found near a pub in the village of Pattingham near Wolverhampton in 2002. He was a drugs courier for a group affiliated with a notorious gang the Johnson group. One of the defendants Levy Solomon Walker is already serving life for the murder of a soldier three years ago."

3. When the court sat the broadcast was drawn to the attention of the trial judge. Applications were made on behalf of all defendants to move the trial to a venue outside the area or alternatively to postpone the trial. The judge adjourned the applications. The defendant promptly supplied particulars of what had been broadcast. On the same afternoon counsel appeared before the judge and gave a "plain and unvarnished apology" on behalf of the defendant. Counasel stated that the defendant "recognised that there had been a serious breach, as serious as it is basic, and that an internal inquiry was underway".
4. Having heard submissions, the judge ruled that the issue of contempt of court should be referred to the Attorney General. It was also accepted, and still is accepted, that the strict liability rule in Section 2 (2) of the Contempt of Court Act 1981 applied. Section 1 of the 1981 Act provides:

"'Strict liability rule' means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular ..... regardless of intent to do so."

Section 2 (2) provides:

"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."

5. On 4 October the judge ordered the postponement of the trial until 15 October, that is for two weeks from the listed date. He declined to transfer to another venue.
6. In a letter to the Attorney General dated 7 December 2007 Mr Chris Whistlehead of Programmes Legal Affairs ITV repeated the apology and gave a detailed explanation as to what had happened. It is entirely consistent with the submissions made today on behalf of the defendant by Mr Caldecott QC.
7. The trial of the five defendants concluded in January 2008. We are told that all five defendants were convicted. At the trial application was made to put in Walker's previous conviction as evidence but the application was refused by the trial judge.
8. By way of mitigation, Mr Caldecott has repeated the unqualified apology. He described the error made in broadcasting the previous conviction for murder as a basic and serious aberrational error. It is blindingly obvious, he submits, that it should not have been broadcast. One of the first things that journalists involved in court reporting are told is that in circumstances such as these previous convictions should not be broadcast.
9. Mr Caldecott relies on a number of mitigating factors: (a) there was a prompt acceptance of guilt and due contrition; (b) the defendant has an unblemished record with respect to contempt of court since its licence was granted in 1993. We are told that the company is one of the regional ITV companies owned by the central company - ITV plc - and since 1989 no ITV company has been found guilty of contempt of court; (c) this was not a case of sensation seeking or seeking an exclusive; (d) prompt disciplinary action was taken against the journalist and he was dismissed, which was a tough sanction; (e) a mandatory refresher course for all editorial staff was arranged; (f) the system has been changed to ensure that unexpected sickness does not permit material to be passed for broadcasting by only one member of the editorial staff; (g) the defendant promptly and voluntarily accepted that it would pay the costs thrown away by the need for an adjournment. These have been assessed in the sum of £37,014.31. The Crown Court would have jurisdiction to make an order with respect to those third party costs under the Costs in Criminal Cases (General) (Amendment) Regulations 2004.
10. Mr Caldecott submits that the defendant's statement that payment would be made was made before the defendant would have known the extent of its likely liability. This was a voluntary attempt to put right the effect of what they had done. The error led to the adjournment rather than the abandonment of the trial.
11. The journalist responsible for the disclosure was dismissed following a disciplinary hearing. He had many years experience as a journalist. He attended two short law courses; the second of them was a full-day course in September 2005 which included consideration of the law of contempt. Unfortunately the producer who should have been on shift with him that morning "called in sick".
12. Mr Caldecott realistically accepts that a deterrent sentence may be necessary. He submits that the defendant has demonstrated that in its case deterrence is not required because of its prompt and effective reaction to its error. It demonstrates that there is no need for deterrence in its case. However there is a more general element to deterrence, the court needing to make clear to the media as a whole the importance of preventing publication of previous convictions in circumstances such as these.
13. Further, the costs thrown away by the adjournment, Mr Caldecott accepts, do not fully reflect the problems caused by the adjournment by way of disruption, inconvenience, delay and cost. We have been referred to many other cases in which sentences of imprisonment and fines had been imposed, some of which have similarities with the present case.
14. Publication of this news item on three occasions on the morning of the trial was a serious and basic error. There was a very real risk that potential members of the jury would have heard the news item. Early morning news broadcasts are generally viewed and listened to in modern conditions.
15. The judge took appropriate action and no attempt is made to criticise it.
16. The conduct of the defendant since the mistake was made has been commendable. Its officers reacted promptly to the request for more information. They accepted their error as soon as they could and have taken measures with a view to preventing repetition. We accept that this was a mistake made by a normally responsible company in an industry which in this respect is normally responsible. We bear in mind that the mistake led to the postponement rather than the abandonment of the trial.
17. The charge to be heard by the trial court - one of murder - was a most serious one. The conviction disclosed was also an offence of murder. The simplicity of the error cannot, in my judgment, affect its seriousness. It is basic. Mr Caldecott accepts that it should be known universally in the journalistic profession that previous convictions of persons being tried must not be disclosed. Moreover it is accepted on behalf of the defendant that the extent of the consequences is not limited to the costs of the adjournment. The work of the court was disrupted. Other cases which could have been listed were not listed. The later listing of this case inevitably meant that other cases could not be tried with consequent delay and stress for all involved in them.
18. I have referred to the voluntary payment by the defendant of the substantial sum of £37,014. I bear in mind that such a payment is a type of punishment in itself and one which could not be imposed in the earlier cases to which we have been referred because the power to make an order under the 2004 Regulations has only quite recently come into effect. That element of payment is not reflected in the penalties imposed in the earlier cases to which we have been referred.
19. The financial penalty must have regard to the prompt and responsible action taken by the defendant. It must also reflect the serious nature of the contempt. This court must signal the importance to the administration of justice of the need to withhold any dissemination of the antecedents of a defendant appearing in a forthcoming trial. The defendant was to be tried on a most serious charge and publication of his serious previous conviction was made on the day of the trial itself.
20. In my judgment, the appropriate fine is one of £25,000.
21. MR JUSTICE KING: I agree.
22. MR CALDECOTT: I agree the order for costs. I think I conceded that in my skeleton argument. Can I ask for 14 days to pay?
23. MR HAVERS: I have no observations on the time sought for payment. As to costs, can I gratefully accept the defendant's acceptance of the liability to pay the Attorney General's costs. Can I suggest that the order should say cost to be assessed if not agreed?
24. LORD JUSTICE PILL: Yes. The applicant will have its costs to be assessed if not agreed. I am grateful to you both for your submissions.