The media coverage of an alleged rape involving top footballers and warnings issued by the Attorney-General have focused the spotlight on contempt laws, reports Philip Hoult

Love and marriage may go together like a horse and carriage, but in the world of the tabloid newspaper a story involving sex and football is probably the closest thing to a perfect union.

That the rape allegations made against Premiership footballers at London's Grosvenor House Hotel should recently have led to what has variously been described as a 'feeding frenzy' and a 'media free-for-all' should not therefore come as much of a surprise.

But, because there are allegations of criminal behaviour, there have been genuine fears that the reporting could prejudice any future trial.

The case has also placed a renewed question mark over the adequacy of existing contempt of court rules - principally, the Contempt of Court Act 1981 and common law contempt.

The 1981 Act lays down a strict liability test for contempt of court, which is whether or not the publication of a story creates a substantial risk of serious prejudice to legal proceedings, which must be 'active'.

The fact that much of the most fevered coverage in the Premiership footballers' case took place before any individuals had been arrested meant this did not apply.

Even though the common law rules can apply to events before arrest, they only relate to where a trial could be seen to be imminent or pending and the prosecution has to show that the editor intentionally or recklessly attempted to create a prejudice - something that would be extremely difficult to do.

The Attorney-General, Lord Goldsmith QC, has been so concerned about the reporting - both pre- and post-arrest - that he has issued not one but three separate notes of guidance to editors.

In the first note, issued on 30 September after details of the suspects were published by several newspapers but before any arrests, he said he was 'very concerned that evidence is not distorted by potentially prejudicial reporting' and that he felt 'bound to remind editors of their obligations...

whether under the strict liability rule or otherwise'.

He also called on editors to ensure that nothing is done which could impede the police investigation or the administration of justice, 'for example in relation to approaches to potential witnesses'.

After the arrest of an individual on 8 October, he reminded newspapers and broadcasters of their obligations under the 1981 Act and urged them to 'exercise restraint' in their reporting, noting that identification was an issue in the case and that the publication of names and photographs had the potential to prejudice future proceedings.

Finally, on 23 October, he issued a further note after the Daily Star had published the names of two of the men arrested, saying he objected to another newspaper publishing their names.

However, no suggestion was made in the note that the Star was actually in contempt.

The Attorney-General's concerns reflect growing anxiety about the reporting of major cases, and those involving celebrities in particular, and have been mirrored in recent comments made by the outgoing Director of Public Prosecutions.

In an interview with The Independent, Sir David Calvert-Smith QC said editors needed to exercise greater self-control.

'Even if they are not technically breaking the law, they are either making it more difficult, or actually impossible, to bring offenders to justice,' he claimed.

Media lawyers are nevertheless split over whether the Attorney-General really needed to issue the notes to editors and indeed the legal status that such guidance has.

'What I find odd is the juridical nature of these guidelines,' says Michael Skrein, a partner at City firm Richards Butler.

'It is a worrying trend because the publication of guidelines from someone who on the face of it is well placed to give them - but which do not have legal authority - is confusing.

'If a policeman pulls you over and has a friendly word, you are going to feel rather resentful if you have not done anything wrong.'

Richard Shillito, a media partner at London-based Farrer & Co, agrees that the Attorney-General may have been 'over-zealous', but says there is a place for him to provide helpful guidance.

'I do not think the press should feel intimidated,' he says.

'The Attorney-General's anxiety about media feeding frenzies in high-profile cases and the possibility that early prejudicial publicity will prevent a fair trial is, I think, understandable.

The positive side of his intervention is, or should be, a level playing field for the press and media generally.'

The jury may therefore be out on the Attorney-General but do the laws themselves need to be changed?

Martin Cruddace, a partner at London firm Schillings and former head of legal at Mirror Group Newspapers, thinks not.

'The 1981 Act is a very good piece of legislation and it actually does balance the competing rights of an individual to have a fair trial and the right of newspapers to report freely and in accordance with the European Convention on Human Rights,' he says.

Mr Cruddace adds that there is no reason why editors should not publish everything they wish to within the limits of the law.

Amber Melville-Brown, consultant at London-based David Price Solicitors and Advocates and the Gazette's media law columnist, maintains that the flexibility of the 1981 Act is a key element of the regime that should be preserved.

'The law as it stands provides practitioners with a framework to assess the risk of contempt,' she says.

'The flexibility of the test - whether the publication is likely to cause a substantial risk of serious prejudice to the proceedings - allows for the specific set of circumstances in question to be assessed by the publisher before publication, and of course later by any court should the question of contempt arise as a result of publication.'

Of course, whether the laws ought to be changed is not the same question as whether the laws will be changed.

More cases, such as those involving the footballers, television presenter John Leslie, against whom two charges for indecent assault were dropped earlier this year (though not because of reporting surrounding the case), and the current trial of Ian Huntley and Maxine Carr - the Soham pair accused of murder and conspiracy to pervert the course of justice respectively - could yet increase calls for something to be done.

And, famously in 2001, the trial of then Leeds footballers Jonathan Woodgate and Lee Bowyer was halted because of a prejudicial piece in the Sunday Mirror, which led to a hefty fine for contempt.

The paper admitted contempt.

One important point, according to Mr Cruddace, is the issue of the overall coverage of a case.

'A problem for the Attorney-General is what happens when one newspaper report that cannot be prejudicial on its own is taken into account with other newspapers' reports,' he says.

'You can then get prejudicial coverage overall but it is very difficult to punish one newspaper for what others have done.'

Even so, Mr Cruddace argues that being held collectively responsible for a trial being aborted is a powerful deterrent for newspapers.

'The public will be particularly displeased and that may encourage Parliament to look at this again,' he suggests.

One area that might be looked at is the issue of the behaviour of the press before anyone is arrested or charged and before the 1981 Act kicks in.

Rod Dadak, head of defamation at City firm Lewis Silkin, says this could be addressed through sensible dialogue between the government, the Press Complaints Commission and newspaper editors - without requiring further legislation.

But he also points out that a growing part of the problem is the publication of rumours and stories on the Internet.

A cursory search on the Web as soon as the allegations about Premiership footballers were made would have immediately provided - through chat rooms - suggestions as to the names of players who may have been involved.

'As we all know, it is pretty much beyond control,' Mr Dadak says.

Tighter regulation of the Internet is, of course, a separate problem.

However, as far as newspapers are concerned, Mr Dadak says it is important to disabuse people of the notion that editors do not take contempt of court seriously.

'Having worked in newspapers for a long time,' he says, 'it is important to emphasise just how carefully editors vet the copy.'

Philip Hoult is a freelance journalist