QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE EADY
| Her Majesty's Attorney General
|- and -
|The Times Newspapers Ltd
Gavin Millar QC (instructed by The Legal Department, Times Newspapers) for the Defendant
Hearing date: 31 July 2012
Crown Copyright ©
The President of the Queen's Bench Division:
This is the judgment of the court to which we have each contributed.
The factual background as at the date of publication
i) NE had before 10 October 2011 suffered another miscarriage. During the pregnancy she had not been taking her anti-psychotic medication.
ii) At 04.30 hours on 10 October 2011 NE presented herself to the A&E Department at Queen Elizabeth Hospital, Woolwich. She was in a distressed state and said that she needed somewhere to sleep and a place of safety.
iii) Before an assessment had been completed by the Mental Health Team, and whilst a bed was being prepared for her, she left the hospital without telling anyone where she was going.
iv) The police were alerted by the hospital, but found that she was not at her home address. The police were told that she should be tracked down urgently.
v) Shortly before 08.30 on Monday 10 October 2011 NE purchased a knife from a supermarket in the Broadway, Bexleyheath, a busy shopping street with a shopping centre and a transport hub through which numerous buses run. Her purchase of the knife is recorded on CCTV. After purchasing the knife, she took it out of its packaging and went back into the street.
vi) She approached a young woman, Ms Kerry Clark, standing at a bus stop outside Snappy Snaps. NE raised the knife above Ms Clark's head. Ms Clark fearing that NE might kill her jumped back and grabbed the knife injuring her hand in the process. Both women fell to the floor. NE demanded the knife back from Ms Clark, but she held on to it. NE walked away. Some of this attack is recorded on CCTV. This attack gave rise to the charge of attempted murder.
vii) NE then crossed to the other side of the Broadway and went towards the junction of the Broadway and Albion Road. This is again recorded on CCTV.
viii) Near to the junction she went into the British Meat Market butchers store at 195 Broadway. She took a second knife. She came out of the butchers and went further down the Broadway turning left into Albion Road. Outside the Ten Pins bowling alley (which is about 100 yards down Albion Road) she approached Mrs Sally Hodkin, a grandmother and an accounts manager at a local solicitors firm, from behind. NE stabbed Mrs Hodkin twice in the neck with the knife and then a third time as Mrs Hodkin fell to the ground; some of this attack is also recorded on CCTV. Mrs Hodkin died at the scene.
ix) As recorded on CCTV, NE then ran back in the direction from which she came and entered a tile shop. The police found her there. She had blood on her hands. According to the police officers at the scene she said, "It was me I did it". She told the officers where the knife was. She made other statements in relation to her condition. She was arrested for both attacks. Mental health specialists at the police station assessed NE as fit to be detained but not to be interviewed. NE was charged with the murder of Mrs Hodkin and the attempted murder of Ms Clark.
The Articles in The Times
"A woman who allegedly killed a grandmother in an apparently random attack had been discharged from a secure psychiatric hospital after killing her mother. [NE] was ordered by a Judge to be detained indefinitely in October 2006, but was conditionally released after doctors' reports and ministerial approval in 2009.
On Monday, about 90 minutes after she sought to be readmitted to hospital, she allegedly used a stolen butcher's knife to kill Sally Hodkin, 59, on a busy shopping street. She is also accused of slashing the hand of Kerry Clark who was waiting for a bus in Bexleyheath, South East London.
It has emerged that [NE]… is a schizophrenic who killed her mother, Marion, on November 4 2005. Lewes Crown Court was told that [NE] attacked her 60 year old mother after a family gathering at her home near East Grinstead, West Sussex. She stabbed her nine times in the face, neck, chest, shoulders and upper body. It was said that she blamed her mother for having one of her two children taken into care. [NE] admitted manslaughter on the grounds of diminished responsibility on October 23, 2006.
The Judge, Anthony Scott-Gaul, sentenced her under the Mental Health Act to remain indefinitely under a hospital order until she was considered fit and well for release. She was placed into the care of Oxleas NHS Foundation Trust, in South East London, where she was an in-patient until 2009.
A spokesman confirmed that she was conditionally discharged in 2009 with the approval of the Ministry of Justice, and was living in supported accommodation. She then continued to receive treatment in the community in line with …"
"… the conditions of her discharge. 'We are carrying out a full investigation which will look at all of the treatment [NE] received from the Trust' the spokesman said. The conditions of her release are unclear but The Times understands that she was being seen regularly by healthcare professionals, sometimes more than once a week. The Trust also confirmed that Ms Edgington had unexpectedly left an assessment suite while a bed was being prepared for her at 7.00 am on Monday, less than two hours before the attacks."
"When [NE] was sentenced for killing her mother, the trial judge ordered that she should be detained indefinitely at a secure hospital. It meant that her future release would be sanctioned by the Ministry of Justice, rather than the Parole Board. [NE] was conditionally released in 2009 after just three years. Although officials who recommended her release are anonymous, their decision would have been signed off by either Jack Straw, the Justice Secretary or one of his ministerial team.
A number of conditions would have been attached to her discharge, such as living in specified accommodation and regular contact with doctors and social workers, plus continuing to take medication.
The Justice Ministry has a power of recall if conditions are breached or there are fears that a discharged patient's health is deteriorating.
If [NE] had been sent to prison, she would have been given a minimum number of years which had to be served before being considered for release on parole."
The contentions and the issues
"The question whether a particular publication, in relation to particular legal proceedings which are active, creates a substantial risk that the course of justice in those proceedings will be seriously impeded or prejudiced is ultimately one of fact. Whether the course of justice in particular proceedings will be impeded or prejudiced by a publication 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. If the trial is to be by jury, the possibility of prejudice by advance publicity directed to an issue which the jury will have to decide is obvious."
"If, as in the instant case and probably in most other criminal trials upon indictment, it is the outcome of the trial or the need to discharge the jury without proceeding to a verdict that is put at risk, there can be no question that that which in the course of justice is put at risk is as serious as anything could be."
(1) Potential serious prejudice: The publication of the previous conviction.
"Publications are most dangerously prejudicial in two particular circumstances. First, when they are published con-temporaneously with the trial, because then jurors read them with particular interest rather than merely as part of an everyday media diet … Secondly, when they disclose prejudicial material which is itself inadmissible in evidence, most obviously perhaps an accused's previous convictions."
(It so happened that in Unger itself neither of these conditions was fulfilled.)
" … the Courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending … "
" … in my judgment the respondents had no business assuming that there would be no trial here, or that any such trial would be so straightforward as to be beyond the risk of possible contamination by prejudicial material. Such a view carried to its logical conclusion would, of course, allow the press to publish not merely all admissible evidence of an accused's guilt but also his or her previous convictions. Plainly that is impermissible … "
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
These wise words should certainly be borne in mind by anyone, whether lawyer or journalist, who is contemplating publishing an article in circumstances such as these, and, in doing so, making a pre-judgment as to the likely issues or outcome in "active" criminal proceedings. As Simon Brown LJ pointed out in Unger, ibid:
"There is always a chance that an accused, whether caught 'red-handed' or not, and however apparently strong the evidence against him, will plead not guilty and elect trial by jury and it is imperative that newspaper articles do not imperil the fairness of any such trial."
(2) Causation: Was there in fact a substantial risk?
i) The circulation of The Times in October 2011 was 370,000. In the London area the circulation was estimated at 66,000. Readership is commonly assumed to be twice the circulation. Although there were no circulation figures for the wide area of London from which the jury at the Central Criminal Court is drawn, the circulation on these figures can only be a very small fraction of that population. The size of the circulation is a highly material fact in assessing the risk of the articles coming to the attention of a potential juror. We conclude that the chances of a potential juror hearing the case of NE at the Central Criminal Court having read The Times are very small, but not so insubstantial as to be disregarded. We therefore reject the submission made on behalf of The Times that the Attorney General's case fails in limine on this ground. Nonetheless the fact that the chance is a very small chance is a material factor.
ii) The articles were, as we have set out, carried on the front and inside pages. They set out in some detail the circumstances of NE's previous conviction and sentence. Photographs were provided to accompany the articles both on the front page and inside page. The articles set out only a bare outline of the circumstances of the murder of Mrs Hodkin and the attempted murder of Ms Clark; they were directed at the previous conviction, the hospital order and the circumstances of her release into the community. The articles were factual and not sensational in presentation. If it had not been for the photographs, they could have been said to have been nearly at the opposite end of the spectrum of memorable effect to the presentations which were the subject of contempt proceedings in Attorney General v Sport Newspapers  1 WLR 1194 under s.6(c) of the 1981 Act. The newspaper published the previous convictions for rape of a man suspected of abducting a schoolgirl when the police were trying to find both the schoolgirl and the suspect. The article began by describing him as "a vicious, evil rapist" who had "a horrific history of sex attacks". It set out details of the attacks and the judge's observation on sentence that "he is an extremely dangerous man who could strike again." The court had, in the light of the nature of the article, no doubt at all that there was a real risk of serious prejudice, though the proceedings were unsuccessful as the intent necessary under s.6(c) was not proved.
iii) The time interval between publication and the determination of NE's guilt was uncertain. If she pleaded guilty, the determination of her case was likely to take place in a short interval after the publication, but in such a case there would be no risk of serious prejudice. If, as should have been anticipated (for the reasons we have set out) as a real possibility, she pleaded not guilty, the trial, given the likely need for expert evidence, was likely to be many months after the publication. The effect of the interval of time between publication and trial, often called the "fade factor", has again been considered in numerous cases: see for example Attorney General v News Group Newspapers  1QB 1, Attorney General v ITN and others  2 All ER 370.
iv) In assessing the effect of the time-lapse on the continuing effect of the articles, we accept that the commission of violent offences by those who were the subject of hospital orders and who were subsequently released into the community is not so rare that it would stand out as uniquely memorable to a person who read the articles in The Times and was summoned to serve on the jury at the Central Criminal Court. The case never acquired the general notoriety of (say) the allegations about Mr Christopher Jefferies, the Bristol landlord who was subjected to such massive and unfair coverage in connection with the murder of one of his tenants in December 2010; nor, to take an earlier example, of the coverage given to Mr Fagin, the intruder who found his way into the Queen's bedroom: see, respectively, Attorney General v MGN Ltd  EWHC 2074 (Admin) and Attorney General v Times Newspapers Ltd, unreported, 12 February 1983.
v) The jury would focus on the evidence and pay careful heed to the directions of the trial judge.
(3) Serious impediment to the course of justice