Withering contempt

After the controversial press coverage of the Soham murders, Stephen Ward investigates whether the Contempt of Court Act 1981 strikes the right balance between freedom of expression and right to a fair trial and asks whether the law needs more muscle

The media coverage of the murders of ten-year-olds Holly Wells and Jessica Chapman has aroused strong feelings that the law of contempt should be changed.

The Attorney-General, Lord Goldsmith QC, felt compelled to write to editors warning them of the dangers of contempt raised by their coverage of the murders and the arrest of two villagers, Ian Huntley and Maxine Carr.

Martin Cruddace, partner at London-based media specialist firm Schillings, knows the pressures on tabloid newspapers to sail close to the wind when navigating the contempt of court laws.

For many years he was the in-house lawyer to the Mirror Group, which includes three of the best-selling tabloids - the Daily Mirror, Sunday Mirror, and the People.

Mr Cruddace says: 'Tabloids are so good at their job in gathering background information that they sometimes do publish information after an arrest which can be a bit too strong.

'But they know other newspapers have the same information and may publish.'

Perhaps more importantly, he adds, they know that other newspapers may not have the information now, but will have it by the end of a trial.

The Contempt of Court Act 1981 was enacted to ensure that the law was compatible with the European Convention on Human Rights.

It must be proved beyond reasonable doubt that publication creates a substantial risk of serious impediment or prejudice to the proceedings.

The Act was welcomed by newspapers and television because it defined the parameters of what they could publish.

Contempt had been governed by common law.

This still applies before proceedings become 'active', which is defined as when the suspect is arrested or charged, or a warrant or summons issued.

Susan Charles, a media partner in City firm DJ Freeman, says: 'The Act was intended to effect a shift in favour of freedom of speech, and to make contempt less wide and restrictive of the media.'

Many critics of the press argue that the law of contempt needs to be tougher.

They include defence lawyers who see the effects of the media onslaught on their clients.

David Corker, partner at London firm Corker Binning, who defended Robert Maxwell's son Kevin on fraud charges and is currently acting for Michael Barrymore, says: 'The conduct of the media in the light of the arrests and police allegations against Ian Huntley and Maxine Carr gives cause for grave concern.

The media have indulged in a policy of character assassination; ex-lovers, for example, have been interviewed so that their shock and feelings of disgrace can be published.'

Mr Corker believes the legislation should be tightened to take account of the climate of hostility that can be created by the cumulative effect of negative reporting.

He says the burden of proof is onerous, and adds that the Act imposes an unreasonably high threshold of proof to establish contempt.

'The law demands that a single article or programme alone and in isolation is shown to create a substantial risk of serious prejudice,' he says, adding that this fails to address the greater danger of insidious prejudice.

'Editors can undermine the supposed protection by each nudging the barrier back a little.'

But Mr Cruddace replies that toughening up the legislation is not the answer, and argues that a 'cumulative effect' restriction would be unworkable.

'You can't try to second-guess what all the other newspapers are going to publish and how that will affect a jury in conjunction with what you are publishing,' he argues.

He points out that defendants only have to prove that an article presents a substantial risk of serious prejudice, not that it was an actual prejudice, so the burden of proof is not huge.

He concedes that 'editors perhaps ought to show more restraint in what they publish,' but adds: 'The current contempt law strikes exactly the right balance between freedom of expression and the right to a fair trial.'

He dismisses newspapers' claims that what they have published is not relevant to the case.

'That is a slightly weak defence,' he says.

'Juries decide on the basis of the whole character.'

But he says judges' decisions are critical: 'It depends on how each individual law officer applies the law.' And he points out that even if newspapers cannot be prosecuted, a trial can still be stopped if there is contempt.

Local newspaper editors are also worried that their publications could be unfairly caught by any changes to the law.

Santha Rasaiah is the political, editorial and regulatory affairs director of the Newspaper Society, and oversees the legal advice given to members in the regional press.

She says coverage of trials is often complained about locally, but it is seldom found that newspapers have actually committed a contempt.

She says it is difficult to see how the law could be tightened in a way that 'would not be open to challenge under the Human Rights Act 1998 and European Convention on Human Rights article 10 (Freedom of Expression) and article 6 (Right to a Fair Trial), quite apart from the impossibility of obeying and enforcing such unwarranted controls in practice.'

Ms Rasaiah is worried about the implications of a threat from the Lord Chancellor's Department (LCD) in a statement earlier this year to amend section 19 of the Prosecution of Offences Act 1985 to empower courts to order third parties to pay costs which their unnecessary or improper acts have caused another party or parties to incur.

She says it was suggested the change in the law might be necessary following the abandonment of the first trial of two footballers Lee Bowyer and Jonathan Woodgate last year, after publication by the Sunday Mirror of allegations that an attack on an Asian student was racially motivated - while the jury was considering its verdict.

Race had been specifically excluded as a motive at the trial.

Ms Rasaiah points out that use of this Act would threaten the day-in-day-out reporting of trials, which is important in justice being seen to be done, and is mostly left to the regional and local newspapers.

'Government ministers and the LCD have stressed the importance of press coverage of the courts,' she says.

'The introduction of costs orders against the press would be a powerful disincentive for regional and local newspapers to report the magistrates and Crown Courts.

Newspapers might neither sustain such awards nor the costs of any increases in insurance premiums and legal costs,' she says.

There is an area of debate over whether the Attorney-General is the right person to take the decision to prosecute.

Lord Goldsmith is probably the least political Attorney-General in recent years.

But as Mr Corker says: 'The Attorney-General is almost always an MP and will be influenced by political considerations.

He will not want to make an enemy of the tabloid press, both because it will risk harming him personally and may make the papers attack his party.'

Mr Cruddace is sceptical that Attorney-Generals as politicians are deterred from embarking on contempt proceedings for fear of upsetting the press, particularly the tabloid press.

'When it comes to elections, newspapers don't decide which party they are going to back according to whether the Attorney-General has brought contempt proceedings,' he says.

Mr Cruddace says it would be easier for day-to-day newspaper lawyers making judgements if the case law were clearer.

He thinks the judges could be more helpful when they do make their occasional rulings.

'When you have a contempt hearing you have arguments from lawyers on both sides and at the end of the day it comes down to what the judges think.

'Their summing up will tend to say the Attorney-General said this, the newspapers said this in their defence, and I think it does or does not constitute a contempt.

They seldom have much in the way of reasoning.'

He says there have certainly been cases in the past where he thought publication would not be contempt, but others have taken a different view.

Mr Corker says one logical result of keeping the law and practice as it is would be jury vetting to detect prejudice.

He was successful in achieving this on one of the only occasions on which it has happened, when he represented Kevin Maxwell.

'The judge admitted evidence of public opinion as gauged by a Gallup opinion poll commissioned by the brothers.

He also allowed questioning of would-be jurors, which led to the removal of several individuals from the panel on the ground of likely prejudice.'

Mr Corker says it may become part of the defence solicitor's job to hold press conferences to rebut allegations made in the press, during when proceedings are active.

'It is an undesirable prospect, but a logical one,' he says.

Many lawyers might regard such a prospect with horror.

And with the deluge of media coverage relating to sensitive cases, some of the more powerful reasons for retaining the status quo have been lost.

Stephen Ward is a freelance journalist