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13 May 2011

Contempt proceedings permitted against the Sun and Daily Mirror

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Contempt proceedings against the media are rare but on 12 May the High Court granted the Attorney General permission to proceed against the publishers of the Sun and Daily Mirror newspapers for contempt of court in relation to their reporting of the police investigation of the killing of Joanna Yeates in late December 2010.

In this case, the Attorney General’s action seems to be caused by the newspapers’ apparent disregard of the notice he issued to the media in December that they should tread more carefully in the reporting of this investigation. The investigation had already been the subject of massive coverage but the arrest of a potential suspect, Chris Jefferies, on 30 December led to frenzied speculation. This intensity led the Attorney General to take the exceptional step of issuing a notice expressing concern. However according to the Attorney General, the two newspapers ignored this and continued to print lurid stories which created a substantial risk of serious prejudice or impediment to any subsequent trial.

The case against the Sun and Daily Mirror is novel because Mr Jefferies was subsequently released without charge and another individual was charged instead with the Joanna Yeates’ murder. That individual has now admitted killing her. The allegation of contempt is therefore put on the premise that the newspapers created a risk of substantial prejudice to a trial that could have taken place. In other words, this action by the Attorney General is purely about pour encourager les autres. Strictly-speaking, the Attorney General is entitled to bring a contempt action for this purpose, the fact that the risk that may have been created by the articles did not ultimately affect the outcome of the case is immaterial because the policy behind the legislation is deterrence (Att.-Gen. v. English [1983] A.C. 116 at141, HL; Att.-Gen. v. Guardian Newspapers Ltd (No.3) [1992] 1 W.L.R. 874, DC). However an action brought in this circumstance raises major issues pursuant to Article 10 of the ECHR. The newspapers can surely argue that where there are no criminal proceedings the justice of which has been put at risk, the right of freedom of expression must be upheld. Furthermore they can contend that the court would be asked to speculate in a vacuum as to the possible effects of their reportage and such judicial speculation pushes the frontiers of contempt law too far.

In the aftermath of the furore surrounding the police investigation, there were calls for the law to be changed to prohibit identification of suspects pre charge. However in March this year Kenneth Clarke confirmed that he did not wish to introduce any new legislation and that the responsibility remained instead with newspaper editors to ensure that their reporting remained within the confines of the law on contempt. Reference has also been made to the passage of time between the publication of the articles and the initiation of this proceeding, which comes after the launch of proceedings by Mr Jefferies himself against various newspapers for libel and invasion of privacy. However the fact of the application to the High Court alone, no matter what the outcome, puts the media on notice that it must proceed with caution in its coverage of criminal investigations.

Corker Binning is a law firm specialising in fraud and criminal work of all kinds.  For more information call us on 020 7353 6000 or go to www.corkerbinning.com.

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