Ever since Emile Savundra, fraudster extraordinaire, put up a less than robust defence to an incisive television inquisition by David Frost a generation ago, the cri de coeur 'trial by media' has recurrently been prayed in aid by both the innocent and the guilty in their defence.Some 25 years later, the Taylor sisters, Michelle and Lisa, heard the Court of Appeal quash their convictions for murder after finding that they had not received a fair trial inter alia because of press stories during the trial with headlines such as 'A fatal attraction - love crazy mistress butchered rival wife, court told'.Press coverage headlined allegations as fact and included doctored photo-graphs under the headline 'Cheats kiss'.

The reporting was described by the Court of Appeal as 'sensational, misleading and inaccurate'.

Unsurprisingly, in June 1993 the Court of Appeal referred press coverage to the Attorney-General, the government law officer charged with bringing prosecutions for contempt.And so it was that on 6 December 1994, 18 months after the Taylor sisters were cleared, they f ound themselves back in court as applicants for leave to seek judicial review of the solicitor- general's decision that contempt proceedings against the Sun, Daily Mirror, Daily Star and Daily Express were 'not appropriate'.

Leave was granted, paving the way to a full hearing and the possibility of action against the papers in question.On only one previous occasion has a conviction been quashed because of the danger that the verdict was influenced by prejudicial publicity.

This was the case involving the so-called 'Winchester three', accused of plotting to kill Northern Ireland Secretary Tom King.On the day after they had claimed their right to silence and declined to give evidence at their trial, the secretary of state announced the abolition of the right to silence in Northern Ireland, saying it was being used and abused by guilty terrorists to escape conviction.This rallying call was enhanced by wide media coverage which included an appearance by Lord Denning, who suggested that Irish defendants who claimed the right were probably guilty.

The Court of Appeal was not impressed with the timing of this announcement a few days before the jury was to deliberate and set aside the conviction.The present law, contained in s.2(2) of the Contempt of Court Act 1981, obliges a court to apply the test of whether a publication creates a 'substantial risk' that justice will be 'seriously impeded or prejudiced'.The 1981 legislation was enacted in the wake of a condemnatory judgment by the European Court of Human Rights against the UK, following on from attempts by the Attorney-General to take action against the Sunday Times for conducting a campaign against Distillers, the manufacturers of the deforming drug Thalidomide.It was said that the press reporting was prejudicial to litigation between victims and the company.

The law, as it then stood, applied the test of the 'possibility' of prejudice.

This was held to be too strict an application of the law and breached the guarantee of freedom of expression enshrined in the European Convention on Human Rights.The new law was therefore a measure aimed at liberalising the position with a new test of 'substantial risk' of 'serious prejudice'.

It also introduced the 'strict liability' rule whereby contempt may be found in certain circumstances regardless of intent, and the introduction of the 'public interest' defence.Neither the old law nor the new was intended to afford protection to deliberate, false and misleading reports.

Whilst the current law has just about got the balance right between open discussion in the public interest and the protection against prejudice in litigation, it does of course require even-handed policing and enforcement to have any impact.Attorneys-general do not have a particularly impressive track record in this regard.

On occasions blatant contempts have gone unprosecuted and unpunished.

When it has suited its purpose, the government has stretched the contempt laws to the limit to protect its own position, for example in the Spycatcher case.In May 1994 the sisters' solicitors wrote enquiring as to the progress of the investigation, only to learn in June that a decision had been taken in April not to institute proceedings, apparently refusing to give reasons for the decision and claiming that the solicitor-general (to whom the Attorney-General had delegated the matter) had concluded that contempt proceedings were unlikely to succeed in respect of any individual item or newspaper report.The application for judicial review, in essence, was based on delay, an inadequate investigation, wrong application of the law, and the failure to give information as to the inquiry.In court, the Attorney-General claimed Crown immunity, saying that he was not susceptible to judicial review in the exercise of his discretionary powers as guardian of the public interest.This historic immunity has recently been bolstered by two authorities - R v Attorney-General, ex p.

Eady (unreported, 26 February 1992) and R v Attorney-General, ex p.

Ferrante (unreported, 1 July 1994).

However, the applicants contend that the exercise of a statutory power affecting their rights renders the exercise of this power reviewable by the courts.Additionally, if the Attorney-General's argument is right, then he remains the only government minister who, by virtue of the personality of the decision maker, remains unreviewable.

It is also claimed by the applicants that other prosecutorial authorities to whom the Attorney-General's position is analogous, are reviewable.Mr Justice Schiemann, in granting leave, observed that the issue was a matter of fundamental constitutional significance and that the law might be ripe for review.Quite apart from the issue of applying the contempt laws appropriately, this case does indeed raise important issues as to the accountability of law officers, the application to the Divisional Court being, as it was, the fourth time in almost as many weeks that the conduct of government ministers has been questioned by the courts.