Factual and Procedural Background
On Monday 10 October 2011, the Defendant was charged with the murder of a woman by stabbing and the attempted murder of another woman on the same day. Two days later, a national newspaper published front-page and inside-page articles detailing the Defendant's previous conviction for killing her mother in 2005, her subsequent detention in a secure hospital, and her release. The articles included photographs and described the circumstances of the earlier conviction and hospital order, as well as the recent alleged attacks.
The Defendant had pleaded guilty in 2006 to manslaughter on grounds of diminished responsibility and was detained under a hospital order. She was conditionally released in 2009 with ongoing mental health support. The recent charges related to events on 10 October 2011, including the purchase of a knife, an attack on one woman, and the fatal stabbing of another. The Defendant was remanded in custody and transferred to a secure hospital pending trial.
The Attorney General sought leave to bring contempt of court proceedings against the newspaper publishers for breaching the strict liability rule under the Contempt of Court Act 1981 by publishing prejudicial material while proceedings were active. Leave to proceed was granted in April and July 2012. The court’s task was to determine whether the publication created a substantial risk of serious prejudice or impediment to the course of justice in the ongoing criminal proceedings.
Legal Issues Presented
- Whether the publication of articles revealing the Defendant's previous conviction for killing her mother constituted a strict liability contempt by creating a substantial risk that the course of justice in the ongoing criminal proceedings would be seriously impeded or prejudiced under sections 1 and 2 of the Contempt of Court Act 1981.
- Whether the facts and circumstances surrounding the publication actually gave rise to a substantial risk of serious prejudice to the trial.
- Whether the publication caused a significant risk of impediment to the course of justice by providing the Defendant with a ground to argue for a stay of proceedings or a ground of appeal.
Arguments of the Parties
Attorney General's Arguments
- At the date of publication, it was uncertain whether the Defendant would plead guilty; thus, a trial was a real possibility.
- Publishing details of the Defendant’s previous conviction before trial risked serious prejudice, potentially influencing jurors and impeding a fair trial.
- The articles’ prominence and circulation meant they could reach potential jurors, increasing the risk of prejudice.
- As an alternative, the publication risked impeding justice by providing the Defendant with an arguable ground to seek a stay of proceedings or appeal based on abuse of process.
Newspaper Publishers' Arguments
- The Defendant was likely to plead guilty on grounds of diminished responsibility, making the previous conviction admissible and thus eliminating risk of prejudice.
- The limited local circulation of the newspaper and the nature of the articles reduced any risk of prejudice.
- The jury’s duty to follow judicial directions would mitigate any potential prejudice.
- Article 10 of the European Convention on Human Rights protects media freedom to report matters of public interest, as supported by the precedent in Worm v Austria (1998).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re Lonrho plc [1990] 2 AC 154 |
Determination of substantial risk of serious prejudice is a question of fact; influence on proceedings may affect conduct of witnesses, parties, or court. |
Confirmed that the key issue is whether the publication creates a substantial risk that justice will be seriously impeded or prejudiced. |
| Attorney General v English [1983] AC 116 |
Serious risk to the outcome of trial or need to discharge jury constitutes serious prejudice. |
Guided the court on the seriousness of risk to the trial’s outcome and balancing fair trial with free press. |
| Attorney General v Unger [1998] 1 Cr App R 308 |
Publications contemporaneous with trial disclosing inadmissible prejudicial material (such as previous convictions) are particularly dangerous. |
Used to illustrate the risk of prejudice from publishing previous convictions during active proceedings. |
| Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15 |
Courts take serious view of published disclosure of prior convictions while proceedings are pending. |
Supported the principle that disclosure of prior convictions risks prejudice in ongoing trials. |
| Attorney General v Sport Newspapers [1991] 1 WLR 1194 |
Nature and tone of publication can increase risk of serious prejudice. |
Distinguished the present factual and less sensational articles from highly prejudicial reports in prior case. |
| Attorney General v Times Newspapers Ltd [1974] AC 273 |
Pre-judgment of judicial proceedings alone does not amount to strict liability contempt. |
Contextual background for the Contempt of Court Act 1981’s enactment and its balancing approach. |
| Sunday Times v United Kingdom (1979) 2 EHRR 245 |
Limits on media coverage must be necessary and proportionate to protect administration of justice. |
Supported the proportionality and necessity principles underlying the 1981 Act’s restrictions. |
| Attorney General v MGN Ltd [1997] 1 All ER 456 |
Factors relevant to assessing substantial risk of prejudice from publication. |
Provided criteria considered by the court in evaluating risk including circulation, content, time interval, and jury directions. |
| Attorney General v News Group Newspapers [1987] 1 QB 1 |
Consideration of time lapse (“fade factor”) reducing risk of prejudice over time. |
Informed the court’s assessment of the effect of the interval between publication and trial. |
| Attorney General v ITN and others [1995] 2 All ER 370 |
Further authority on the effect of time lapse on prejudice risk. |
Supported the court’s consideration of fading impact of publicity over time. |
| Attorney General v MGN and News Group Newspapers [2011] EWHC 2074 (Admin) |
Risk of impediment to course of justice by providing grounds for stay or appeal. |
Used to assess whether publication gave rise to a seriously arguable case for staying proceedings or appeal. |
| Worm v Austria (1998) 25 EHRR 454 |
Importance of media freedom in reporting matters of public interest under Article 10 ECHR. |
Relied on by the newspaper to support the right to publish despite the risk of prejudice. |
| John v Rees [1970] Ch 345 |
Warning against premature assumptions about the strength or outcome of cases. |
Emphasized risks of pre-judgment and the unpredictability of trial outcomes. |
Court's Reasoning and Analysis
The court recognised that the strict liability rule under the Contempt of Court Act 1981 focuses on whether a publication creates a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. The court examined the factual background, confirming that proceedings against the Defendant were active at the time of publication.
It acknowledged the established principle that disclosure of previous convictions during active proceedings is likely to cause prejudice, particularly where the conviction relates to similar charges. However, the court stressed that whether such prejudice is substantial and serious depends on the facts and circumstances at the time of publication.
The court rejected the newspaper’s assumption that the Defendant would plead guilty on diminished responsibility, noting that at the date of publication no such instruction or certainty existed. It was possible the Defendant might plead not guilty, leading to a full trial where the previous conviction might or might not be admissible.
In assessing the actual risk posed by the publication, the court considered factors including the newspaper’s circulation (noting it was relatively small in the relevant jury area), the factual and non-sensational nature of the articles, the presence of photographs, and the uncertain time interval between publication and trial. The court also considered the likelihood that jurors would follow judicial directions and focus on evidence presented in court.
Despite recognising that the publication of the Defendant’s previous conviction was potentially seriously prejudicial, the court concluded that the Attorney General had not proved, to the criminal standard, that there was a significant risk that the publication would seriously prejudice the course of justice. The primary case therefore failed.
Regarding the alternative argument that the publication might give rise to a seriously arguable ground for a stay of proceedings or appeal, the court found no such seriously arguable case existed on the facts.
The court reiterated the importance of caution in crime reporting, warning that premature assumptions about likely pleas or trial issues pose risks to the fairness of trials and access to justice.
Holding and Implications
The court’s final decision was to dismiss the Attorney General’s application for contempt of court under the strict liability rule. The primary case for contempt was not established.
The direct effect is that the newspaper publishers were not held liable for contempt in publishing the articles. The court emphasized that no new precedent was set, and the decision was narrowly based on the specific facts and evidential circumstances of this case. The ruling underscores the delicate balance between protecting fair trial rights and upholding freedom of the press, reaffirming the necessity of a fact-specific inquiry into substantial risk of serious prejudice.