QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TUGENDHAT
| Her Majesty's Attorney General
|- and -
|Associated Newspapers Limited
Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant (Associated Newspapers Limited)
Pushpinder Saini QC and Kate Gallafent (instructed by Reynolds Porter Chamberlain LLP) for the Defendant (MGN)
Hearing date: 13 June 2012
Crown Copyright ©
President of the Queen's Bench Division :
"… an avalanche of material which strayed far beyond either the facts of what happened yesterday or the facts of the offences for which he had been convicted, and in particular strays into territory of allegations being made … of a hugely prejudicial nature."
He added that it was "wholly unrealistic and quite hopeless" for the jury "to try to put that avalanche of material out of its mind, either individually or collectively."
"… a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
The Act provides that the proceedings must be active within the meaning of the Act. It is accepted on behalf of both newspapers that the proceedings were active and the reports complained of amounted to a publication.
i) The fact that Wilkie J stayed the proceedings was not of itself determinative: see Simon Brown LJ in Attorney General v Birmingham Post and Mail  1 WLR 361 at 371. As was also said in Birmingham Post and Mail at 374 the trial judge was concerned with the risk of the defendant not having a fair trial and the jury not reaching a just verdict; s.2(2) was concerned with the risk that a serious issue might arise as to whether a judge should have to stay a trial or take some different course to avoid that.
ii) In considering the test under s.2(2) the question is whether the publication would have given rise to a seriously arguable ground of appeal if the trial had been allowed to continue and proceeded to conviction. (See Simon Brown LJ at page 371); this approach is the one to be followed (see A-G v MGN  EWHC 2074 (Admin),  1 Cr App R 1. at paragraph 28).
iii) The question of risk must be looked at at the point of publication; the conduct of each publisher must be looked at separately: A-G v MGN Ltd  1 All ER 456 at 460; A-G v Express Newspapers  EMLR 13. The case against each must be considered separately and the cumulative effect cannot be lumped together. It must be proved to the criminal standard of proof that the publication in question caused the substantial risk of serious prejudice.
iv) The fact that there is some risk of prejudice by reason of earlier publications is not conclusive; if several newspapers publish prejudicial material, they cannot escape by contending that the damage has already been done. It is sufficient that the latest publication has afforded an additional or further risk of prejudice or exacerbated and increased that risk: see A-G v Independent Television News  2 All ER 370 at 381 and A-G v Express Newspapers.
v) The test under s.2(2) generally satisfies the balance required under Article 10 of the Convention: see paragraph 32 of the decision in A-G v MGN.
i) Could there have been a substantial risk of serious prejudice by the publication of the articles in each of the newspapers, given what had been put before the jury about Bellfield in the course of the trial and the jury's decision to convict him in respect of the murder and kidnapping of Milly Dowler?
ii) Was what had been broadcast the preceding evening on the news channels such that the particular publications could not have given rise at the point of publication of the morning of 24 June 2011 to a substantial risk that the course of justice would be seriously prejudiced?
It is convenient to consider these sub-issues first before answering the overall question as to whether the course of justice would have been seriously prejudiced or impeded.
Issue 1: Could there have been a substantial risk of serious prejudice by the publication of the articles in each of the papers, given what had been put before the jury about Bellfield in the course of the trial?
(a) What was made known to the jury about Bellfield?
(i) The other murders
i) The murder of Marsha McDonnell on 4 February 2003.
ii) The murder of Amelie Delagrange on 19 August 2004.
iii) The attempted murder of Kate Sheedy on 28 May 2004.
The judge ruled on 20 April 2011 that these convictions could be placed before the jury as evidence of bad character. In addition there was evidence of his bad character of obtaining by deception in relation to credit cards.
(ii) Johanna Collings
(iii) Emma Mills
(iv) Evidence excluded
(b) The information published on 24 June 2011
(i) The articles in the Daily Mail on 24 June 2011
"He regularly used prostitutes and kept an empty flat near his home for sex sessions. At night he would stalk nightclubs in search of young women, drug their drinks and bring them back to the flat. He would invite friends over to share the captive girl around.
Disturbingly, six cases of drug-induced rape were sent to the Crown Prosecution Service more than two years before Bellfield was jailed for murdering Amelie and Marsha. They involved girls aged between 14 and 16. The CPS decided there was not enough evidence at that stage to proceed – and when Bellfield was given a whole life sentence in 2008, it was agreed there was no public interest in pursuing the cases.
A former colleague recalled how, by working as a bouncer in Maidenhead, Berkshire, Bellfield gave rohypnol to a young clubber before raping her in the club car park and stealing her mobile phone. When the girl's mother rang, Bellfield answered and boasted about what he had just done to her. Another teenager was assaulted in a toilet cubicle at a club in Cobham, Surrey after Bellfield got her drunk. A friend of the victim looked over the top of the door and asked if she was all right. Bellfield held the girl's jaw and moved her mouth like a ventriloquist's dummy to make her say yes."
i) The detailed allegations in respect of the Russell murder.
ii) His drug induced rape of girls between 14 and 16.
(ii) The article in the Daily Mirror on 24 June 2011
"He openly boasted of carrying out sex attacks on women – and branded blondes evil f****** bitches who must die.
He also bragged about raping a disabled girl on a car bonnet in a club car park after lifting her from her wheelchair, according to his ex-wife Johanna Collings. Johanna, 38, who endured two and a half years as his sex slave in the mid-90s, said: "He was six foot of pure evil. When he came in late after working on a club door, he'd tell me how he had had 'another little slut'.
"Levi took great pleasure in telling me how they fancied a kiss and a cuddle.
"But when he got them where he wanted them, he just took them.
"He would tell me straight out if he had raped a girl, or even two, on an evening. He'd laugh and say they deserved it.
"He warned them what would happen if they went to police. I was just too scared to even think of saying anything."
i) His violent treatment and depraved sexual abuse of Johanna Collings and Emma Mills.
ii) The rape of a disabled girl on a car bonnet and his sexual interest in and rape of girls.
(c) Did the knowledge the jury had mean that there could not have been a substantial risk of serious prejudice?
(i) The submissions made
(ii) My conclusion
Issue 2: The effect of the broadcasts on the preceding evening
(i) Pre-trial publicity
(ii) What was broadcast on the afternoon and evening of 23 June 2011
i) Sky News :
a) Reported that the terms "woman hater" and "a violent predator" were used by the prosecution. The reporter described Bellfield as having a history of violence against even those that loved him.
b) Carried an interview with Emma Mills in a 12 second part of which she said he had been raping her for some years and there was a night where she thought he might kill her. The remainder of the interview was concerned with the murder of Milly Dowler.
c) Referred to the existence of some evidence found by the police that he had committed 20 other attacks including date rapes and attempted abductions, but investigations came to nothing as there was not enough evidence.
d) Made allegations in a part of the programme that lasted about three minutes that Bellfield might be related to the murders of Lin and Megan Russell. This drew attention to the e-fit, the remarkable resemblance and carried an interview with the solicitor of the person convicted of the murder.
a) Carried an interview with Johanna Collings in which she said that nothing was needed to wind Bellfield up or trigger him; she spoke of an occasion when she did not iron his trousers correctly and he then "beat me, biting, kicking, punching everything".
b) Carried an interview of former Detective Chief Inspector Sutton who had led the investigation into the murders of Marsha McDonnell and Amelie Delagrange who stated that Bellfield "would commit anything – he had no regard for the law or even morality".
a) Spoke of a man with "a long history of brutality" who had left a trail of trauma … including within his own family, showing a short interview with Bellfield's daughter.
(iii) The effect
Mr Justice Tugendhat :