The media storm surrounding “missing” canoeist John Darwin shows no signs of diminishing. But does the right to a fair trial exist when the media splashes details of criminal charges across the newsstands?

Owen Amos, of The Northern Echo in Darlington, asks whether John and Ann Darwin could ever face a fair trial – and whether newspaper coverage has gone too far.

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John and Ann Darwin are innocent.

The UN Universal Declaration of Human Rights and the EU Convention on Human Rights says so.

“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty in a public trial,” it says, in Article 11 of the UN Declaration.

So what if John, or Ann – or both – plead not guilty? Would the jury presume their innocence? Not if they’ve read a paper in the past two weeks.

The Darwins’ story, a real-life Jack Higgins novel, is an editor’s dream. Every newspaper, almost every day, has carried it since The Northern Echo broke the story on Monday, December 3. It’s had more twists than a bowl of fusilli and cooked up more conversations than a dozen Westminster scandals.

The problem is, John Darwin was arrested on Wednesday, December 5. The second a person is arrested, legal proceedings are active. And the second proceedings are active, newspapers can be found in contempt of court.

The Contempt of Court Act 1981 was designed to ensure jurors base verdicts on what they hear in court, not what they read in papers. Editors, therefore, must not print anything that creates “substantial risk of serious impediment or prejudice”.

Have the red-tops remembered?

The Sun’s front page on Saturday, December 8 read: “The Liar, The Witch, and The Wardrobe”. Neat, undoubtedly – but fair? Next to “liar” was a photo of John Darwin; next to “witch” was his wife. The wardrobe, allegedly, covered a secret passage in Seaton Carew.

The Sun claims eight million readers a day. A jury, chances are, would contain at least two of them. Would he, or she, give Ann Darwin a fair trial? Or would she be dismissed, before evidence, as a witch?

The Daily Mirror readers could be similarly prejudiced. While The Sun may have made CS Lewis turn in his grave, The Mirror’s headline read: Why We Did It: Canoe Wife Tells Her Extraordinary Story. It read like a first-person confession.

But what if Ann Darwin changes her mind?

What if she pleads not guilty, insisting she made the story up to pocket The Mirror’s “fess-up” fee?

Simon Westrop, legal advisor for Newsquest, The Northern Echo’s parent company, maintains the red-top tabloids’ Darwin theories – as they did not concern specific charges – would have been sanctioned by the newspapers’ lawyers.

He said: “I think most newspapers have avoided stating matters that go to the heart of the actual legal allegations that are made against the Darwins.

“Everybody has said Mr Darwin appears to have pretended that he was dead, but I believe the actual charges are that he falsified an insurance claim and made false statements to get a passport.

“I don’t know what The Sun’s editor and lawyers decided, but they may have taken the view that these comments don’t go to the heart of any alleged illegal activity.

“The general character of the Darwins is obviously brought into question, but the test in these matters, as prescribed by the Contempt of Court Act 1981, is whether the material at the time of publication creates a substantial risk of prejudice.

“I think The Sun’s lawyers may well have taken the judgement that these comments did not exceed that test.”

So would Mr Westrop have approved The Liar, The Witch, and The Wardrobe if The Northern Echo dreamt it up?

“I would have been surprised if we had really wanted to run that headline, but I think I would have agreed that it did not fall foul of the test.

“It’s a jokey headline and I don’t think it creates a problem in relation to the allegations the Darwins are facing.”

As the story develops, though, the twists are harder to find. Newspapers hunt for the last hot fusilli in a bowl of lukewarm pasta. One story – broken by one paper, repeated by others – was “much more difficult territory”, Westrop says. He advises not to repeat it.

It was The Mirror’s sister paper, The Sunday Mirror, that was involved in the century’s most prominent Contempt of Court case. In April 2001, the trial of Jonathan Woodgate, Lee Bowyer, and two others, accused of assaulting Safraz Najeib, was near complete. The judge, Mr Justice Poole, told jurors not to consider the alleged assault as racist. While the jury deliberated, The Sunday Mirror published an interview with Najeib’s father – who insisted the alleged assault was racist.

Once the judge knew jurors had read it, the trial was abandoned, and re-held – at a cost of £2m – with a new jury. The Sunday Mirror was found guilty of contempt and fined £75,000.

But newspapers, in an increasingly competitive market, will take risks. While Ian Huntley was on trial, the Sunday People printed a front-page picture of him next to Hannibal Lecter. The message was clear: Huntley is a guilty monster.

Mr Justice Moses allowed the trial to continue, concluding that the jury could concentrate on the evidence. He did, however, warn journalists: “The important right of the Press to report on public trials carries with it a responsibility to protect the fairness of them.”

Mr Westrop thinks, on the whole, jurors can – and should – be trusted to put aside what they have read in newspapers.

“The courts these days do take a very much more pragmatic view than perhaps was the case in the past,” he says. “Increasingly, the courts say the proper approach is to give proper guidance to the jury and instruct them to ignore the fuss in the newspapers. I think there’s obviously a lot of sense in that.

“If you trust the jury to make a momentous decision as to whether someone is guilty or not guilty, are we seriously saying we can’t trust them to ignore what they have read in a newspaper?”

Or, as Lord Justice Lawton said: “I have enough confidence in my fellow countrymen to think they have got newspapers sized up and they are capable in normal circumstances of looking at a matter fairly and without prejudice, even though they may have to disregard what they have read in a newspaper.”

That was in 1969. The details change; the stories – or most of them, at least – stay the same.