There is already speculation that the scale of allegations emerging about sexual abuse in football will eclipse the Jimmy Savile revelations.
The NSPCC has said that around 350 potential victims have reported sex abuse within British football. Last week there were 860 calls in the first week alone of the NSPCC helpline. The number of referrals to police and social services was much higher than in the Jimmy Savile enquiry over the same period.
Newspapers across the country will be reporting the revelations as fully as possible, each with a local angle to bring the story home to their readers.
At the same time, former football coach Barry Bennell has been charged with eight offences of sexual assault against a boy under 14. He is to appear in court next week (14 December).
As the CPS reminded us in an advisory note last week, Bennell has the right to a fair trial. The note warned that it is extremely important that there be no reporting, commentary or sharing of online information which could in any way prejudice the proceedings.
But what does that mean in a story of this scale, when so much has already been reported? There are new allegations from footballers coming forward after the investigation that the current charges relate to, and there is so much detail already in the public domain and therefore available to a potential juror.
What is on– and off- limits when it comes to reporting allegations of sexual abuse in football? There is no easy answer. But then when is there, to a legal question?
Usually, the obvious things to watch out for when reporting proceedings which are active, include references to previous convictions, revealing that the defendant faces other charges, publishing evidential detail, ‘bad character’ articles which vilify a defendant, and of course, direct or indirect assertions of guilt.
The question to ask, based on the facts at the time of publication, is this: “Would publishing this article cause a substantial risk that the prejudice to the course of justice would be serious?” That is, is there a risk which is more than remote or minimal, that the report will result in a jury being dismissed, or in grounds for an appeal?
The strict liability rule means that a publisher’s intention is irrelevant; it makes no difference whether the risk was intended or simply a mistake. Nor is it of any use to protest that the nationals had already published the story; there is no safety in numbers. What’s more, if another newspaper has already caused some risk of prejudice, a new article publishing more detail can increase the risk created by earlier publications.
When a case is already well-known, how much will reporting previous convictions, or reporting on-going and emerging allegations, cause a substantial risk of serious prejudice? Each article has to be assessed according to risk, based on the facts and context of each story, and how much is already in the public domain.
There is some guidance in case law:
The Levi Bellfield jury was discharged when the Daily Mirror and Daily Mail published details about Bellfield’s interest in young girls after the jury had reached their verdict on the Millie Dowler murder but before they had reached a verdict on a second alleged victim. The newspapers revealed information about Bellfield’s past and character that the jury hadn’t heard. Both newspapers were fined £10,000 each, plus costs.
The trial of Leeds United footballers Lee Bowyer and Jonathan Woodgate gives some insight into interviewing family members or interested parties. MGN was fined £75,000 after it published an article that led to the collapse of the trial. The huge fine was the result of the Sunday Mirror’s decision to publish an interview with the family of an Asian victim of an attack while the jury was considering the verdict. At the time, Andrew Caldecott QC said in Court that the ’emotive’ interview “had a fundamental capacity for prejudice”. The thrust of the interview was that the attack was racist, whereas the trial judge had stressed to the jury that the prosecution was not arguing the attack was racially motivated.
The Nicola Edgington case gives some pointers on reporting previous convictions. In this case, the fact that Edgington who was on trial for murder had already killed her mother, was unknown to the jury. However, the earlier murder was reported in the Times, which narrowly escaped sanction because it was held that it was not proved to a criminal standard (beyond reasonable doubt) that “there was a significant risk that the potentially highly prejudicial articles would prejudice the course of justice”.
The judges gave a salutary warning in the Nicola Edgington case: “those in the business of crime reporting should recognise that articles such as those which make assumptions about the extent of the issues likely to be disputed in forthcoming criminal trials are published at their peril.”