Sensationalist media reporting of criminal and legal proceedings is on the increase, and while lawyers are divided on the impact, they agree there is room for action. Kate Hanley reports.




The timing of the Attorney- General’s recent injunction against the BBC to suppress a report about the ‘cash-for-honours’ police investigation could not have been more ironic. Only days before, the Gazette invited the Attorney- General’s office to respond to criticism from senior lawyers that Lord Goldsmith is not doing enough to censor potentially prejudicial media reporting ahead of criminal trials.


One need only recall the summer of 2002, which was dominated by almost obsessive newspaper coverage of the Soham murders. Those reports were described as ‘frankly unacceptable’ by Lord Goldsmith, yet no action was taken.



Then there was the Woodgate/Bowyer debacle, where the assault trial of the Premiership footballers collapsed following publication of an interview with a key witness. In that case, the Sunday Mirror was fined £75,000 and editor Colin Myler resigned.



More recently, the arrest of nine men in Birmingham suspected of plotting to kidnap and behead a British Muslim soldier resulted in intense newspaper speculation about the individuals, including personal profiles, alongside headlines such as ‘How al-Qaeda brought Baghdad to Birmingham’.



‘Time and again the Attorney General has failed to intervene or warn the media against such reporting even after charges have been brought, yet it is his direct responsibility to ensure contempt of court is not allowed,’ says civil liberties solicitor Louise Christian of Christian Khan in London.



Ms Christian acted for Tahira Tabbassum, the widow of British suicide bomber Omar Shariff, whose explosives failed to detonate during the bombing of a bar in Tel Aviv and whose body was later washed up on the Israeli coast. Ms Tabbassum was the first person tried under the government’s post- 11 September terror laws, accused of failing to inform authorities of her husband’s intentions. ‘Before her trial, my client was on the front page of the Evening Standard under the headline “Woman of Terror”,’ continues Ms Christian. ‘She was subsequently acquitted, and it is this kind of thing that is absolutely awful.’



Criminal defence solicitor Mark Haslam of London’s BCL Burton Copeland, who is acting for Ipswich murder suspect Steven Wright, is equally concerned by what he describes as an ‘unequivocal’ escalation in recent years of potentially prejudicial reporting. ‘We have moved into a situation where, in high-profile cases, there is saturated media coverage which is unduly speculative and which seriously impacts upon people the moment they are arrested.’



He continues: ‘It raises two issues. First, it is detrimental where the person has only been arrested and not even charged – the media can, quite frankly, trash people’s lives. Second, and more important, is whether such publicity, on such a scale, can really enable a fair trial to take place. So far, the courts have been very reluctant to find any form of abuse of process and tend to take the view that any potential prejudice can be remedied by the trial judge.’



There is a fear among defence solicitors that unchecked media reporting could spiral into a system akin to the US, which at times is reduced to a media circus. Nancy Slonim, a spokeswoman for the American Bar Association, says: ‘In the US, the courts regulate the conduct of lawyers but they do not typically regulate what the media is able to report, due to the constraints of our First Amendment and legal rulings that prohibit prior restraint of freedom of the press.’



In the UK, the Contempt of Court Act 1981, together with common law, governs media coverage of legal proceedings, whether criminal or civil. Under the Act, the media must not publish any material that may pose a ‘substantial risk of serious prejudice’ to proceedings. For it to apply, proceedings must be active; this means, in criminal cases, from arrest or charge until verdict. However, under common law, prosecutions for contempt may still be brought before a case is considered active if it can be shown that proceedings were imminent. The Attorney-General’s gag in relation to the alleged cash-forhonours scandal, though dropped a few days later, prompted speculation that a prosecution may be in the pipeline.



‘In practice, whether or not the media is in contempt comes down to a delicate balancing act of the defendant’s “birth right” to a fair trail by jury, against the fundamental right of the press to act as the eyes and ears of the public,’ explains Jo Ruffle, solicitor at leading media firm Schillings. ‘In a recent decision, the Court of Appeal held the free reporting of proceedings to be the lesser of the two evils.’



On the other side of the fence to criminal defence solicitors is Justin Walford, deputy legal manager for News International, whose main remit is The Sun and News of the World. He argues, ‘I don’t think for one minute that newspapers are breaching the law. If someone is arrested for a very serious offence, it is only right that in an open society we should have reporting and not a system of secret justice.’



He highlights the ‘fade factor’, a reference to the length of time between publication of prejudicial material and the trial itself. It is a key factor in determining whether or not contempt has occurred because memories of articles read by the public are deemed to fade over time.



‘What is key is that, in the early stages, there is a massive amount of media reporting, much of it making very different points,’ explains Mr Walford. ‘But the trial is very much later and the amount of prejudicial material likely to be remembered is minute. Some people would argue that, in the early stages, the present laws are far too restrictive.’ The fade factor was cited by Mr Justice Moses as a reason for continuing with the trial of Ian Huntley and Maxine Carr, despite the torrent of publicity surrounding the case.



Another argument why media frenzy may not amount to prejudicial reporting is the ability of a jury to disregard such material. ‘Juries are healthy bodies. They do not need a germ-free atmosphere,’ ruled the judge in a landmark case against the Daily Record in Scotland in 1999. The Scottish courts have traditionally taken a more stringent stance against the media than in England and Wales – the Mail on Sunday and its Scottish edition are currently being prosecuted for publishing an interview with a witness in the case against Peter Tobin, accused of the murder of Polish student Angelika Kluk.



Sally Ireland, senior legal officer at human rights organisation Justice, expands: ‘The courts’ view is that juries are robust and are good at rejecting sensational headline reporting, confining their deliberations to the evidence. I think that approach is largely correct, although it’s hard to verify it.’



Crucially, the Contempt of Court Act bans any attempt to establish how a jury reached its verdict, meaning the true effects of pre-trial reporting on juries cannot be measured. The Department for Constitutional Affairs consulted last year on the possibility of reform to allow academic research into juries, but changes remain in the early stages. In a study of the affects of pre-trail publicity on jurors undertaken in Australia and regularly cited in the UK, publicity was found to have influenced the verdict in only three cases out of 41, flying in the face of the presumption of jury contamination by the media.



Ms Ireland goes on to cite the jurors in the ‘ricin’ trial of 2005, three of whom took the unprecedented step of speaking to the media about their decision to acquit four of the five defendants accused of conspiracy to produce poisons. Writing anonymously in The Guardian, they said: ‘Despite hysteria in the media, no ricin was found. And rather than accept the fact that they were not conspirators, there was an assumption that those acquitted “got away with it”.’ They were, they said, able to put aside any prejudicial reporting when reaching their decision to acquit.



Ms Ireland observes: ‘In a jury system where the Court of Appeal is limited on how far it can go into a jury’s reasons behind a verdict, it is very important that we have a situation where we can understand what jurors take into consideration when reaching that verdict.’ The ricin case, together with the Birmingham arrests and the case of Ms Tabbassum, are among a series of recent terrorist stories to have attracted sensationalist reporting, while at the same time receiving no intervention by the Attorney General to ban potentially prejudicial material.



According to Louise Christian, this may be no coincidence: ‘I do think the government has a stake in releasing details of these sorts of cases, to convey the message, “Look how clever we are, another serious crime foiled”. The Attorney-General has a conflict of interests here and it would be much better to have someone independent of the government.’



Ms Ruffle concludes: ‘Hopefully, we will start to see a shift in favour of the defendant’s fundamental right to a fair trial, as the dangers of trial by media become more apparent.’



Kate Hanley is a freelance journalist