QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE NICOLA DAVIES
| Her Majesty's Attorney General
|- and -
|The Condé Nast Publications Limited
Adrienne Page QC and Adam Wolanski (instructed by Wiggin LLP) for the Defendant
Hearing date: 2 July 2015
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
The contents page, accompanied by a photograph of Mrs Rebekah Brooks described the article as:
"Michael Wolff Up close and personal at the phone-hacking trial"
The article by Michael Wolff, under a very large photograph of Mrs Brooks, was entitled:
It was accompanied by sketches of the proceedings and other photographs. I set out some of the content of the article at paragraphs 18 and following.
i) The words "substantial risk" mean a risk which is more than remote or not merely minimal and that it must be judged at the time of publication.
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 Attorney General v Birmingham Post and Mail  1 WLR 361 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 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.
iv) 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) What was the risk of the publication coming to the jurors' attention? This involves a consideration of the extent of the publication of the April 2014 issue of GQ.
ii) Was there a risk of serious prejudice? Did the article itself contain material that was seriously prejudicial?
iii) Could a jury have been relied upon to use their common sense to ignore it?
i) Mr Wolff is a journalist based in New York who writes a regular column in GQ on the media industry. The court was told that Mr Wolff pitched an article on the "hacking trial" for the January 2014 edition of GQ. Mr Dylan Jones was of the view that such an article could not be published until after the trial, but he would pay for Mr Wolff to come to London and observe the trial. After the article had been written, Mr Wolff said he believed he had written it within the rules relating to contempt. Mr Jones still took the view that it would not be possible to publish it, but after taking advice that the article was not likely to contravene the strict liability rule, decided to publish it.
ii) We were told of the circumstances in which advice was given. A statement was provided to us outlining the advice. The fact that advice was given was relied on by Condé Nast as "telling". As the liability is strict and it is for the court objectively to assess the factors, it is not, in my view, appropriate in this case to refer to the advice, to give any details as to the source of the advice or set out my views on it. That is the view I have taken in this case, as it is also a factor that the provider of the advice was not aware of the course a court might take in making the advice public. I would simply add that this is not a precedent and the same course might not necessarily be the course taken in the future. However, the fact that advice was taken from a competent source (which in the circumstances I have set out it will not be necessary for me to identify) may be relevant to penalty.
iii) Mr Dylan Jones tendered his apologies "that the court's time and public resources are being expended in consideration of this matter". He gave the court an assurance that Condé Nast would never deliberately or recklessly have published matter that would prejudice court proceedings.
The risk of the article coming to the attention of jurors: the extent of the publication
i) The April 2014 issue of GQ had total sales of 90,573, comprising 38,305 newsstand sales, 24,199 subscriber sales, 6,137 digital edition sales and 21,898 multiple copy sales (sales to airline companies, hotels, waiting rooms and the like).
ii) It was estimated that 43,168 of the sales were in London, 13,755 from newsstands in London, 5,859 to subscribers in London, 1,622 digital sales to those living in London and 21,932 multiple copy sales were made in London.
iii) The article was not made generally available on line.
iv) On receipt of the letter from the Treasury Solicitor to which I have referred at paragraph 3, a recall request was made; 61 per cent of the newsstand supply was returned and destroyed.
The content of the article
The scope of the allegations in the trial
Mr Wolff's credentials as a media commentator
The article's description of the role of Mr Rupert Murdoch:
"One word is seldom uttered in this trial "Murdoch".
You might think that, by the way the narrative is unfolding here, Murdoch's association with the proceedings is mere inconvenience or happenstance.
One might have thought, at least in an amateur legal analysis that either the defence or the prosecution - or both - would have put the old man on trial, however remotely.
Just to utter the word "Murdoch" could, from the prosecution's perspective, have tarred the defendants. Indeed so powerful is the word that it may arguably be prejudicial in and of itself, or perhaps a distraction from the people actually on trial. The more guilt that might be ascribed to him, the less for the defendants.
That might logically have been a defence ploy: to make the defendants victims of the far-off monster. On the other hand, arguably, the more you say the name Murdoch the more you ascribe a negative aura to all. Guilt by association
And all the prosecution has to do is show that they did what they are said to have done, however more mundane it might appear without Murdoch having ordered them to do it."
The article's description of the arrangements for the payment of defence costs
"Also, not incidentally, Murdoch is paying for much of this grand defence, by some estimates the most costly in British legal history. From the defence's point of view, there's only so much you'd want to bite the hand that feeds.
And perhaps he is more useful in his absence. Without Murdoch as the anchor, it is natural to wonder just exactly why we are here. One unifying thread of the hacking investigation has surely been to get Murdoch – hacking being just the latest manifestation of Murdoch cynicism, arrogance and perfidy. But by removing Murdoch from this story line you are left with a potentially much smaller tale, mundane acts instead of epic ones. Just the usual nasty newsroom stuff instead of a vast, insidious conspiracy to undermine the public good."
The article's description of the role of Mr Coulson
"One evening outside the trial, I saw Andy Coulson, who I have always liked, across the room at a cocktail party. I manned up and greeted him, hoping I had not written such horrible things about him - but realising that in his role as a Murdoch surrogate I probably had. Coulson maintained a dignified manner, correcting me on a few points and carefully keeping his reserve about the trial and his fate. He was the noble figure. I was the heel. …
Coulson has been transformed from factotum and apparatchik into a brooding and existential figure. The invisible man beside greater men now seems larger, straighter, handsomer. The clerk has bloomed. Being caught in such inexorable circumstances has given him gravitas. He is the ultimate keeper of the secrets. Does anyone know more than Coulson? His hypothetical book may well be the most valuable property in British publishing."
The article's description of the role of Mrs Brooks
"[Rebekah Brooks] has already banked a settlement of a reported Ł10.8m from Rupert Murdoch on her contract with News International, giving her vast wherewithal to contemplate a future of … well, whatever she wants. What's more, she obviously possesses all those traits that are said by schadenfreude–loving wags to have put her here. She is clever, sharp, winning, seductive, cunning – well prepared to do what is required. No, she is unlikely to retire. Even if worse comes to worst, she'll emerge soon enough. She could be Britain's Martha Stewart. But on the UK stage, she is even larger."
The effect of the earlier media coverage
"So it is important that I should warn you so that you know to disobey any of these directions can amount to a contempt of court, which is punishable by a sentence of imprisonment or a fine."
It is therefore unrealistic to think that the jurors would have conducted research on the internet.
Overall conclusion on serious prejudice
Would the jury have in effect used their common sense to ignore it?
The directions to the jury
The timing of the publication
The continuation of the trial
The submission of Condé Nast
My conclusion on this issue
Mrs Justice Nicola Davies