There had been, over some years, ‘saturation coverage’ of the relationship between a television personality and her boyfriend. Disclosures were made about his violence and his previous convictions. He came to be arrested and charged with a serious assault. Some newspapers published articles about the alleged incident. He successfully applied for the proceedings to be stayed on the ground that the pre-trial press coverage of the case made it impossible for him to have a fair trial. The Attorney-General now applied for orders for contempt of court saying that the articles had created a substantial risk that the course of justice would be seriously impeded or prejudiced within the meaning of section 2 (2) of the 1981 Act. The court was asked what principles governed the assessment of the risk that a publication might prejudice the defendant’s right to a fair trial.
Held: Schiemann LJ said: ‘(1) Each case must be decided on its own facts;
(2) The Court will look at each publication separately and test matters as at the time of publication; nevertheless, the mere fact that, by reason of earlier publications, there is already some risk of prejudice does not prevent a finding that the latest publication has created a further risk;
(3) The publication in question must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication;
(4) That risk must be substantial;
(5) The substantial risk must be that the course of justice in the proceedings in question will not only be impeded or prejudiced but seriously so;
(6) The Court will not convict of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice;
(7) In making an assessment of whether the publication does create this substantial risk of that serious effect on the course of justice the following amongst other matters arise for consideration: (a) the likelihood of the publication coming to the attention of a potential juror; (b) the likely impact of the publication on an ordinary reader at the time of the publication; (c) the residual impact of the publication on a notional juror at the time of trial. It is this last matter which is crucial. One must remember that in this, as in any exercise of risk assessment, a small risk multiplied by a smaller risk results in an even smaller risk.
(8) In making an assessment of the likelihood of the publication coming to the attention of a potential juror the Court will consider amongst other matters: (a) whether the publication circulates in the area from which jurors are likely to be drawn, and (b) how many copies circulated.
(9) In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication, the Court will consider amongst other matters: (a) the prominence of the article in the publication, and (b) the novelty of the content of the article in the context of likely readers of that publication.
(10) In making an assessment of the residual impact of the publication on a notional juror at the time of the trial, the Court will consider amongst other matters: (a) the length of time between publication and the likely date of trial, (b) the focusing effect of listening over a prolonged period to evidence in a case, (c) the likely effect of the judge’s directions to a jury’.
Schiemann LJ
[1997] 1 All ER 456, [1997] EMLR 284
Contempt of Court Act 1981 2(2)
England and Wales
Cited by:
Cited – Her Majesty’s Advocate v William Frederick Ian Beggs (Opinion No 2) HCJ 21-Sep-2001
The defendant complained that an article published on the Internet was a contempt of court in that it prejudiced his trial for murder by reference inter alia to previous proceedings against him. There were others also. The court was aksed whether . .
Cited – Attorney General v Random House Group Ltd QBD 15-Jul-2009
The Attorney-General sought to restrain the publication of a book which she said would prejudice the defendants in a forthcoming criminal trial. The publisher said that a restraint would be a disproportionate interference in its Article 10 rights. . .
Cited – Attorney General v Random House Group Ltd QBD 15-Jul-2009
The Attorney-General sought to restrain the publication of a book which she said would prejudice the defendants in a forthcoming criminal trial. The publisher said that a restraint would be a disproportionate interference in its Article 10 rights. . .
Cited – Attorney General v Associated Newspapers Ltd and Another Admn 3-Mar-2011
Complaint was made that the defendant newspapers were in contempt of court in publishing on their respective web-sites showing the defendant in the criminal trial brandishing a gun, and claiming that he was boasting of his involvement.
Held: . .
Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court, Media
Updated: 01 November 2021; Ref: scu.248472
