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
		13/11/2012

The President of the Queen's Bench Division:

This is the judgment of the court to which we have each contributed.

Introduction

1. On Monday 10 October 2011, Nicola Edgington (NE) was charged with the murder that day of Mrs Sally Hodkin by stabbing and the attempted murder that day of Ms Kerry Clark.
2. Two days later, on Wednesday 12 October 2011, The Times published on its front page an article entitled Knife-attack woman stabbed her elderly mother to death. It continued on the inside page under the heading ALLEGED KNIFE KILLER STABBED HER ELDERLY MOTHER TO DEATH referring to a fatal stabbing which NE was alleged to have carried out on Monday 10 October 2011. A further article was headed KILLER FREED AFTER 3 YEARS : ANALYSIS. Both articles set out details of her previous conviction for the killing of her mother in November 2005, the order for her detention in a secure hospital made in October 2006 and her release.
3. Those representing NE, who had been committed for trial at the Central Criminal Court on charges of murder and attempted murder, asked the claimant (the Attorney General) to consider whether the publication was a contempt of court under the strict liability rule set out in s.2(2) of the Contempt of Court Act 1981. On 24 October 2011, the Attorney General wrote to the defendants (Times Newspapers), publishers of The Times, seeking their comments. After taking their response into account, the Attorney General sought the leave of the court to commence proceedings for contempt. That leave was granted by the Divisional Court on 24 April 2012; on 13 July 2012 further leave was granted to enable a secondary case to be advanced.
4. Since it has not been suggested that the editor or any relevant journalist had an intention to interfere with the administration of justice, there arises no question of contempt at common law for which it would be necessary to prove the requisite mens rea. The court is thus concerned only with the issue of whether the Attorney General is able to prove that one or more of the published articles infringed the provisions for strict liability contempt contained within ss.1 and 2 of the Contempt of Court Act 1981. More specifically, can he so establish "a publication which created a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" within the meaning of s.2(2)? The proceedings in question must be active at the time of publication.
5. It is first necessary to summarise, as appears from the evidence before us, the factual background relating to the "proceedings in question". It is common ground that proceedings against NE were active. The evidence comprised the clear and helpful statements of Mr Michael Jennings, a legal adviser to the Attorney General and Ms Fiona Hamilton the crime correspondent for The Times.

The factual background as at the date of publication

6. In early November 2005, following a miscarriage, NE stabbed her mother, Marion Edgington (aged 60), several times in the back and neck inflicting fatal injuries. The killing took place at her mother's home.
7. In 2006 NE pleaded guilty at Lewes Crown Court to the manslaughter of her mother on grounds of diminished responsibility. NE was made the subject of a hospital order under s.37 of the Mental Health Act 1983 after hearing evidence from two psychiatrists.
8. It appears on the evidence before this court that in 2009 NE was released from hospital into the community on condition that she would continue to take anti-psychotic medication. As at 10 October 2011 she was living at Ambekar House in Greenwich, South London with assistance from the NHS Oxleas Foundation Trust which provides support and accommodation to adults with mental health issues who live in South East London. NE was being seen by mental health professionals at least weekly.
9. The evidence upon which the Crown will rely in relation to the charges of murder and attempted murder is, in outline, the following:

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.

10. On 11 October 2011 NE was taken to Greenwich Magistrates' Court. The evidence before us was that she was not brought into the courtroom because a psychiatrist considered her too unwell. Her case was sent for trial at the Central Criminal Court.
11. On 13 October 2011, she appeared at the Central Criminal Court; she was remanded in custody at the secure hospital to which she had been transferred. A Plea and Case Management Hearing took place on 17 January 2012; the trial was initially fixed for 2 July 2012. However on 26 June 2012, the trial was adjourned until January 2013. She has pleaded not guilty to both charges, though the Attorney General's skeleton argument set out the understanding that "she has pleaded guilty or has indicated her intention to plead guilty to manslaughter… on the basis of diminished responsibility, but that the Crown has rejected the plea".

The Articles in The Times

12. The article on the front page under the heading Knife-attack woman stabbed her elderly mother to death was accompanied by a large photograph of NE with the caption, "[NE], 31, pictured above after killing her mother in 2005, was unable to attend court yesterday because of her 'extreme' mental health problems". The article stated:

"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 …"

13. The article continued on an inside page under the heading "Alleged knife killer stabbed her elderly mother to death"

"… 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."

14. The article then set out what had happened at the hospital on 10 October and explained her release in 2009 had been approved by the Ministry of Justice. Three photographs were published, including one of Mrs Hodkin and her family and one of NE's mother.
15. A second article was published along side the photographs. It was headed: Killer freed after three years: Analysis.

"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."

16. After the publication of the articles on 12 October 2011, the Attorney General immediately issued an Advisory Note to the media drawing the attention of editors to the publication of NE's previous convictions and to the editors' responsibilities under the Contempt of Court Act.
17. There has been no other relevant publication.

The contentions and the issues

18. It was the Attorney General's case in summary that at the date of publication it was uncertain as to whether NE would plead guilty. If there was a trial, it was for the judge to decide at that trial whether NE's previous conviction for manslaughter would be admissible. Thus publishing details of that conviction in advance of the trial would be seriously prejudicial. The articles would have had a significant impact on readers because of their prominence and content. Readers, given the circulation of The Times, could have included those who might serve on a jury. At the time of publication it could not be known when the trial might take place. Thus, taking the possible timescale and the impact of the articles, the fading of recollections could not be relied upon as negating the substantial risk of serious prejudice. As an alternative case, it was contended there was a substantial risk that the course of justice would be impeded as the articles provided NE with a serious argument for the stay of the proceedings on the ground of abuse and a ground of appeal.
19. In summary the case for Times Newspapers was that the articles could not give rise to a risk of serious prejudice, as NE would have been bound to admit the killing and plead guilty on the grounds of diminished responsibility. On such a plea, the expert medical practitioners would inevitably, in the course of their evidence, have referred to the killing of NE's mother. Even if that were not so, the limited circulation of The Times in the area from which the jury was likely to be selected, the nature of the articles, the time before any trial could take place and the duty of the jury to follow the directions of the judge taken together plainly demonstrated that there was no risk that the articles would either prejudice or impede the course of justice, let alone seriously prejudice or impede it. Reliance was also placed on Article 10 of the Convention. The decision of the European Court of Human Rights in Worm v Austria (1998) 25 EHHR 454 showed how important it was for the media to report matters of public interest.
20. Ultimately the question of whether the articles breached the strict liability rule is a question of fact. That was made clear by Lord Bridge of Harwich in the unanimous report of the Appellate Committee in Re Lonrho plc [1990] 2 AC 154 at page 209:

"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."

21. It was common ground that the issues of substantial risk and serious prejudice had to be determined as at the date of publication; that the court was to examine that issue by examining the practicalities and not theory. The test is on this basis predictive. Thus, as Lord Diplock stated in Attorney General v English [1983] AC 116 at page 142C,

"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."

22. Although, as we have set out above, there is only one question for this court to determine, it is convenient to do so by reference to three issues.

(1) Potential serious prejudice: The publication of the previous conviction.

23. It has long been recognised that one category of information about an accused person that is likely to create prejudice among potential jurors who learn of it is that of previous convictions, particularly if they relate to charges of a similar kind to those pending. In Attorney General v Unger [1998] 1 Cr App R 308, for example, Simon Brown LJ made the following comments:

"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.)

24. In similar vein, Mason CJ in the High Court of Australia observed in Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15, at p.28, that:

" … 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 … "

25. On the other hand, much will depend on the circumstances. While any lawyer advising a newspaper or other media outlet is bound to apply the most anxious scrutiny to any proposed article drawing attention to an accused person's previous convictions, and to advise the utmost caution, much will turn in the last analysis on what is actually known as to the issues to be resolved at the pending trial.
26. Assumptions were made by the newspaper publishers in Unger as to the likely issues at trial. Simon Brown LJ trenchantly observed, at p.317, that:

" … 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 … "

27. In that case, the facts were rather unusual. The accused person was a home help who had been caught on a video recording apparently stealing money from an 82 year old neighbour in whose home she was supposed to be carrying out her duties. The Daily Mail gave an account of the matter under the heading "The home help who was busy helping herself". Reliance had been placed on legal advice to the effect that it was unrealistic to expect a plea other than guilty, since the woman had not only been caught red-handed but also confessed. The then Attorney General contended that the publication constituted a strict liability contempt, on the basis that at the time the story was published there had been a real prospect that she might have elected trial by jury. In that event, it was submitted, the article would give rise to a substantial risk of serious prejudice (assuming that she entered a plea of not guilty). The application was also founded on the potential impact the publication would have had on the accused's freedom of action in the criminal proceedings. She might have been led to conclude that in the light of the article there would be no point in contesting the case.
28. Simon Brown LJ also referred in Unger, at p.316, to the observations of Megarry J in John v Rees [1970] Ch 345, 402:

"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."

29. Practical experience of criminal proceedings makes clear that however strong evidence might appear and however hopeless a defence might appear, a defendant may well ignore advice and plead not guilty. Indeed the fact that a person is caught apparently red-handed does not in practice mean that a person will necessarily plead guilty; there are countless examples where defendants do not. An assumption that there will be a plea in such circumstances does not accord with practical experience. For journalists or editors, or the legal advisers, to "second guess" whether there will be a trial or, if so, what the issues are going to be, is almost invariably inappropriate. Such a process, inevitably taking place on the basis of a partial or incomplete knowledge of the relevant facts, pays insufficient regard to the primary need to maintain the integrity of the trial process.
30. We accept that the evidence in the present case against NE was very strong. It is now difficult to see the basis on which she could contest the killing; a plea of guilty at least to manslaughter on the grounds of diminished responsibility would now seem likely. Nonetheless, taking the position as it was at the time of publication which was only two days after the killing, there was a real possibility that she might not admit killing Mrs Hodkin and that there would therefore be a trial on all issues. We cannot accept the submission that it could be said at that time that the only realistic prospect of a trial was on the grounds of diminished responsibility; no-one on behalf of NE would have had an opportunity to assess the position. It could not be confidently assumed at that time that that would be so or those would have been her instructions which (as there has been or is no suggestion she was unfit to plead) her legal team would be obliged to follow. We therefore turn to consider the position on the basis that there might well have been a trial.
31. In the present case, there can be no doubt that on a plea of not guilty, publication of her previous conviction for the killing of her mother might well give rise to a substantial risk of serious prejudice. Although it was argued that it was inevitable that, if she pleaded not guilty, the judge would admit the previous conviction, we cannot accept that. The decision would depend on a number of factors which could not be ascertained until it was clear what the defence would be. In any event under s.101 of the Criminal Justice Act 2003, the judge has a broad discretion and the exercise of that discretion is for the judge and the judge alone.
32. It was accepted by the Attorney General that there was a public interest in the subject matter – the release of a person into the community after the indefinite hospital order imposed after conviction for the killing or other crime of violence and the alleged killing at random of another person. That may be so in many contexts. Nonetheless, in our view, the 1981 Act, in balancing the conflicting interests between what Lord Diplock described as "fair trial and free press" (see Attorney General v English [1983] AC 116 at 139), places the interests of the defendant in a fair trial above publication in advance of that trial where it is proved that publication would realistically create a substantial risk of serious prejudice to that trial. In such a case, the public interest in the issue being discussed and debated must be postponed until after the trial. As Lord Diplock observed at p.141 of English, "the true course of justice must not at any stage be put at risk". In Attorney General v MGN Limited [2011] EWHC 2974 Lord Judge CJ in giving the judgment of the court stated at paragraph 32, that the provisions of the 1981 Act provide the mechanism for balancing the competing interests recognised in Article 10.
33. Thus there can in the present case be little doubt that the disclosure of the previous conviction was potentially seriously prejudicial in that it could have made a trial unfair.

(2) Causation: Was there in fact a substantial risk?

34. The right of an accused person to be accorded such latitude and to elect trial by jury has long been fundamental to our system of criminal justice. However, it is right to recall that for over 30 years now the mere fact of a pre-judgment of judicial proceedings whether by the publication of potentially prejudicial material or otherwise, however ill judged and unwise, cannot of itself amount to strict liability contempt. That was established following the decision of the House of Lords in Attorney General v Times Newspapers Ltd [1974] AC 273 and the ultimate outcome in Strasbourg in Sunday Times v United Kingdom (1979) 2 EHRR 245. That was the background against which the Contempt of Court Act 1981 was passed into law. Parliament was thereby recognising the need to ensure that restrictions should be placed on media coverage of court proceedings only to the extent that it could be shown to be necessary and proportionate to the need to protect the administration of justice: see for example the observations of Lord Hailsham LC during the second reading, on 9 December 1980, at Hansard, HL, Vol 415, 5^th series, col 660.
35. Thus, although disclosure of the previous conviction was potentially seriously prejudicial, it is necessary to consider the question of whether, on the facts of this case, the circumstances of the publication actually gave rise to a substantial risk of serious prejudice.
36. The factors to which the court must have regard in considering that question have been spelt out in the numerous authorities; see for example, Attorney General v MGN Ltd [1997] 1 All ER 456. It is not necessary to set them out or to restate them. It is simply necessary to set out the matters to which we have had regard:

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 [1991] 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 [1987] 1QB 1, Attorney General v ITN and others [1995] 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 [2011] 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.

37. The matter can be tested further by taking the hypothetical case of an empanelled juror who had read the article originally and the shocking nature of the events described had begun to slip from his/her memory. The events might very well be jolted back into the forefront of his/her mind when the facts of the case were opened. The juror might very well say "Did I not read about this horrible killing in Bexleyheath?". Yet the hypothesis which we are required, in effect, to assume is that such a juror would then go on to say, "What is more, I remember something which we have not been told about in this defendant's psychiatric history: she also stabbed her mother in 2005".
38. It is deeply regrettable that The Times published the previous conviction of NE and that Times Newspapers contested the first issue, namely whether the publication of the previous conviction was at that time potentially seriously prejudicial. Nonetheless, considering each of the factors which we have set out, we have narrowly reached the conclusion that it has not been proved to the criminal standard on the specific facts of this case that there was a significant risk that the potentially highly prejudicial articles would seriously prejudice the course of justice. Thus in our judgment, the Attorney General's primary case fails.

(3) Serious impediment to the course of justice

39. It was the Attorney General's alternative case that the publication gave rise to the significant risk of impediment to the course of justice on the basis explained by Lord Judge CJ in giving the judgment of the court in Attorney General v MGN and News Group Newspapers [2011] EWHC 2074 (Admin). It was submitted that the articles would have given NE an argument at trial that a fair trial was not possible and a ground of appeal to that effect.
40. As was made clear in Attorney General v MGN and News Group Newspapers, the question is not whether the court would at the end of the day accede to the argument that a fair trial was not possible or would allow the appeal, but whether there would be a seriously arguable point. In our view, having regard to the factors we have set out at paragraph 36 above, we do not consider that there would have been a seriously arguable case for contending that the proceedings should be stayed as a fair trial was not possible in the light of the articles in The Times or any seriously arguable ground of appeal.

Conclusion

41. It is important to emphasise that in Unger, where similarly the contempt was not proved, Simon Brown LJ concluded by warning that those in the business of crime reporting should recognise that articles such as those which make assumptions about the extent of the issues likely to be disputed in forthcoming criminal trials are published at their peril.
42. That they should exercise great caution remains equally true today. If there is created a substantial risk of serious prejudice, the danger is that those most immediately concerned in the case, not only any accused person but also the victims and their families, may unnecessarily be deprived of access to justice. That should be a danger no editor wants to create.