In light of the tragic events earlier this week, it may be worth pausing to reflect on the balance that needs to be struck between responsible reporting and its impact on the integrity of future legal proceedings. The need to do so does not begin with the bringing of a criminal charge but on the arrest of a suspect: Contempt of Court Act 1981, Schedule 1. A finding of contempt is the consequence of improper reporting but its implications reverberate long after any fine imposed on a publisher has been paid off. It is a fundamental tenet of United Kingdom law that a person accused of an offence is entitled to a fair trial. This is echoed in Article 6 of the European Convention on Human Rights but there is no material difference in the principles that will be applied even if the United Kingdom was not a signatory to the Convention.
In some circumstances, the suspect seems, on the basis of information released into the public domain, guilty. In these cases, it is arguable that even greater caution to apply the principles of a fair trial is necessary. Consider the arrests of Colin Stagg and Christopher Jeffries as compelling examples. In Stagg, not only was he publically portrayed as the killer of Rachel Nickell before trial but for many years afterwards, the veil of suspicion hung over him – held steadily in place by some quarters of the press. In 1994, after two years of being held in custody, Mr Justice Ognall, following an abuse of process argument focusing, not on the adverse publicity, but the catastrophic operation to entrap him involving police, prosecutors and self-styled “Jigsaw Man” psychologist Paul Brittan acquitted Stagg and stayed the proceedings. Robert Napper was later convicted of Ms Nickell’s murder. Christopher Jeffries was similarly demonized after the killing of his tenant Joanna Yeates in 2010. In fact, Vincent Tabak, Joanna’s neighbour was her murderer. ITV later broadcast a drama called “The lost honour of Christopher Jeffries”; it may as easily have been called his public lynching.
English law has had to engage in considerable hand wringing on hearing defence applications to stay proceedings as a result of unfair publicity. There is a tightrope for judges to walk – balancing the need for those suspected of crimes to answer them – against affording those accused the very minimum safeguards that due process demands.
In R v Taylor and Taylor in 1993, the Court of Appeal had to consider whether to order a re-trial of two women accused of the murder of the wife of one of their lovers. There was no question that they had a case to answer but the treatment of the case during the first trial by the media was described as “unremitting, extensive, sensational, inaccurate and misleading”.
But, held the court, the press was no more entitled to assume guilt than a police officer was entitled to convince himself that a defendant was guilty and suppress evidence which he feared might lead to the defendant’s acquittal (material non-disclosure had resulted in the original convictions being quashed). Michael Stone (convicted of the murder of Lin and Megan Russell in 1996) was also successful in securing a fresh trial as a result of press impropriety.
Recent cases have been less favourable to defendants. In R v Dunlop (the first case brought following the amendment to the double jeopardy rule) the Court of Appeal in 2006 rejected an argument that adverse publicity would make a fair retrial impossible. Last year, Abdulla Ali, lost his case before the European Court of Human Rights alleging a violation of Article 6 on the grounds of prejudicial reporting of his trial (the so called “Liquid Bomb Plot”), the Strasbourg court holding that, “it was rare that pre-trial publicity would make it impossible to have a fair trial at some future date, it generally being sufficient to have an appropriate lapse of time between the prejudicial comments in the media and the subsequent criminal proceedings, together with suitable directions to the jury”.
The low risk of de-railing a trial through unconstrained reporting of rumour, speculation or even evidence yet to be given ought not to lead to a media free-for-all. Risk is a fluid concept – today’s case may not see a return to the halcyon days of the application of rigid principle – but tomorrow’s might. In the last month the Supreme Court in, PJS v News Group Newspapers, cited Lord Mansfield R v Wilkes in 1768, “that the law must be applied even if the heavens fell”. Where adverse publicity results in a prosecution being stayed, it will not be open to the press, as it was in PJS, to call the law an ass. This label will be the sole preserve of those journalists reporting the case with reckless disregard for fair trial principles.
In an open society, comments by the press are inevitable in cases concerning public interest. Lord Atkin, one of our most liberal jurists, wrote that, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. Liberty of the press is a fundamental element of any free society but, to adopt the words of one European Court of Human Rights judgment, “a virulent press campaign can adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors called upon to decide the guilt of an accused”. The role of the courts is not to fetter what Lord Atkin called the right to “criticize temperately and fairly any episode in the administration of justice” but to prevent reporting that creates a real risk of prejudice such that a fair trial cannot take place.
Simon McKay is a barrister specialising in criminal, human rights and regulatory law