QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
MR JUSTICE OWEN
| Her Majesty's Attorney-General
|- and -
News Group Newspapers Limited
Mr Jonathan Caplan QC (Instructed by Reynolds Porter Chamberlain LLP) for the First Defendant
Miss Adrienne Page QC and Mr Anthony Hudson (Instructed by Farrer & Co) for the Second Defendant
Hearing date: 5th July 2011
Crown Copyright ©
The Lord Chief Justice of England and Wales:
The articles complained of
Daily Mirror – 31 December 2010
"Arrest landlord spied on flat couple", followed immediately below by:
"Friend in jail for paedophile crimes", followed immediately below by:
"Cops now probe 36 –years old murder."
In short, while positively asserting that Mr Jefferies was a voyeur, without directly asserting that he was involved in paedophile crimes or a long unresolved murder, the impression conveyed to an objective reader was that he was somehow linked with not one but two awful, additional crimes.
The Sun, 1st January 2011
Daily Mirror, 1 January 2001
"Joanna Yeates's killer may have been waiting for her inside her basement flat as she returned home. Detectives yesterday sent towels and bedding for DNA tests after finding no signs of a break-in".
We observe that if entry was not forced, then whoever went into the flat had access to it. The only person with such access referred to in any of the articles in the Daily Mirror was the landlord.
"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."
Dealing with it briefly, impeding the course of justice and prejudicing the course of justice are not synonymous concepts. If they were, they would not have been identified as distinct features of the strict liability rule.
"…an appeal on the ground of prejudice would not succeed, no more should the publisher be guilty of contempt. The prospective risk of serious prejudice cannot be any greater than the actual possibility, in the assumed situation, that it has occurred. By parity of reasoning, a case in which an appeal would in the assumed events succeed will ordinarily be a case where contempt is made out."
"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 had heard or read. I am certainly not saying that in respect of one and the same publication there cannot be both a contempt…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 the 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…, 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".
"It seems to me necessarily to follow…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 section 2(2) postulates a lesser degree of prejudice than is required to make good an appeal against conviction…In short section 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…if it is actually unsafe."
"I still think that to create a seriously arguable ground of appeal is a sufficient basis for finding strict liability contempt. Clearly it is a relevant consideration too that 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, 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)."
He went on to examine judicial confidence in the jury system. Juries can be trusted to fulfil their responsibilities with integrity, according to the evidence before them. He suggested that perhaps too much weight should not be attached to this consideration because he agreed with the submission by counsel for the Attorney-General that carried too far, "there would be no need for a law of contempt in the first place".
"The statutory question for this court…is whether the publication created a substantial risk that the course of justice will be substantially impeded or prejudiced. It is not the statutory question posed by section 2(1)(a) of the Criminal Appeal Act 1968, namely whether the conviction was unsafe…the trust which is placed on juries…cannot always be relied upon by those whose publications put the prospects of a fair trial at substantial risk."
"It must always be remembered that the law of contempt is concerned with preventing a publication because it creates a substantial risk of serious prejudice whereas the Court of Appeal will be concerned with whether there has been such prejudice as renders the conviction unsafe. The fact that no actual prejudice has resulted from the publication cannot prevent it being a contempt within the meaning of section 2(2), although no doubt the lack of actual prejudice may be relevant in deciding whether there really was a substantial risk of serious prejudice."
"The course of justice is not just concerned with the outcome of proceedings. It is concerned with the whole process of the law, including the freedom of a person accused of a crime to elect, so far as the law permits him to do so, the mode of trial which he prefers and to conduct his defence in the way which seems best to him and to his advisers. Any extraneous factor or external pressure which impedes or restricts that election or that conduct, or which impels a person so accused to adopt the course in the conduct of his own defence which he does not wish to adopt, deprives him to an extent of the freedom of choice which the law confers upon him and is, in my judgment, not only a prejudice but a serious prejudice."
Although Oliver LJ, at the end of this passage, referred to prejudice, these are examples, but not a comprehensive list, of occasions when the course of justice would be impeded. Another such risk may well be found in a well justified submission that the trial should be stayed on the basis of the contents of the article in question, or the trial moved (see for example, Attorney-General v British Broadcasting Corporation  COD 254 and Attorney-General v Birmingham Post and Mail Limited  1WLR 361).
(This) "must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed. The influence may affect the conduct of witnesses, the parties or the court. Before proceedings have come to trial and before the facts have been found, it is easy to see how critical public discussion of the issues and criticism of the conduct of the parties, particularly if a party is held up to public obloquy, may impede or prejudice the course of the proceedings by influencing the conduct of witnesses or parties in relation to the proceedings".