Opinions on the effects of recent media coverage of the Matthews case will inevitably differ.

But for those interested in media law, the more pertinent questions are: has the coverage breached contempt laws, and if so, does anyone care these days?

Section 2 of the Contempt of Court Act 1981 imposes strict criminal liability on any media organisation whose publication creates a substantial risk of serious impediment or prejudice to the administration of justice once a suspect has been arrested or charged.

Let’s consider that in the context of Matthews’ case.

She was arrested on Sunday April 6 and charged on Tuesday April 8 with perverting the course of justice and child neglect.

Without press revelations, we might perhaps have imagined that the background to such charges could be that she had lied to the police and the public about her daughter Shannon’s disappearance and that she might not have been the world’s best mum.

More details, we could be satisfied, would be forthcoming later in the court case once defence lawyers had sieved the evidence for admissibility. But as so often these days, unrestrained media coverage left little to the imagination.

On April 8, with the proceedings active and the strict liability rule in place, media reports nevertheless told us (and potential jurors) that Shannon’s disappearance may be linked to a cash scam in the TV drama Shameless. There was, we were told, an episode in January in which a fake kidnap was staged by a family member with a £500,000 ransom demand.

We were also told Matthews had admitted to police on April 6, while sitting in an unmarked car at traffic lights, that she “knew where Shannon was”, and that it was thought she said she had been offered a place to stay by the man accused of kidnapping Shannon – “even packing a plastic bag of clothes”.

Such key alleged admissions were reported even though Matthews had apparently not been cautioned at the time. The admissibility of any such material is likely to be highly contentious, yet we could read all about it at our leisure.

The next day, as Matthews made her first court appearance, it was reported that a man who appeared to be associated with her family had made an aggressive request to Kate and Gerry McCann for cash for Shannon from the Madeleine Fund.

Meanwhile, what of the child neglect charge?

It was reported on April 9 that Matthews had been branded unfit to be a mum by her own sister. We (and potential jurors) were told she “forgot how many children she had, stuck plastic bags on her children’s bottoms instead of nappies and even snubbed the funeral of her own Down’s syndrome nephew”.

There were accompanying photographs to ram home the “bad mum” message, just as the criminal justice process, with its well-intentioned checks and balances, was getting started.

So – do these two strands of reporting constitute a “substantial risk of serious impediment or prejudice” to Matthew’s right to a fair trial? Has the coverage amounted to contempt under S2?

That depends on how far you stretch the phrases “substantial risk” and “serious impediment or prejudice”. There are respectable arguments either way.

A tougher line might be taken in Scotland, but in England and Wales there have been few contempt prosecutions and successive Attorneys-General have given the press a loose rein that is constantly being worked freer by reporting that pushes the limits.

More importantly, senior judges have recently ruled in cases such as R v Dhiran Barot and R v Abu Hamza that juries should be trusted to ignore press coverage and decide cases purely on the admissible evidence – particularly when any prejudicial reporting has occurred months before a trial.

Matthews’ predicament is not unique. Think of the unrestrained coverage in the case of “Canoe Man” John Darwin and his wife, Anne, or the no-holds-barred reporting after the arrest of Ipswich serial killer Steve Wright, including that photograph of him pretending to strangle a woman.

The bottom line is that Matthews and others whose prosecutions are the subject of full-blooded reporting will get a fair trial in front of conscientious jurors who, thanks to the “fade factor”, will be unaffected by any transient prejudicial press coverage.

But it would be constructive if the government embraced the new climate of open reporting by reforming the terms of S2 to remove the grey area of criminal liability that currently hangs over editors and media organisations.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]