A disgruntled QC’s letter to The Times has provoked the Attorney-General to defend her enforcement of the law of contempt.
Her response gives a rare insight into the approach of the Government law officer with primary responsibility for policing prejudicial reporting.
Top criminal law barrister Alun Jones QC wrote: “Has the law of contempt ceased to apply to the media?
“The times have gone when the Attorney-General enforced the law of contempt effectively. If she does not do so, what is the point of it?”
His criticism was directed at media reports of the partly unsuccessful prosecution of eight men accused of plotting to blow up transatlantic airliners with liquid explosives disguised as drinks.
He was concerned that, while prosecutors have until to end of the month to decide whether there should be a re-trial, the media have reported that counter-terrorism officials are “dismayed” and “astonished” at the jury’s refusal to accept the “strongest evidence yet in a British terror trial”.
But in a reply published on September 18, the Attorney-General Baroness Scotland said she enforced contempt law “fairly and robustly”.
She said: “The law on contempt involves a delicate balance between two vital public interests – on the one hand freedom of expression and on the other hand the right of an accused person to a fair trial.
“Not every public comment about a particular case, however outspoken, will seriously interfere with the rights of the accused.
“That may be so, for example, where there is likely to be a long gap in time between the publication and any future trial, so that it is unlikely to weigh heavily in the minds of the jury by the time they come to hear the case (the ‘fade factor’).”
She said there may also be no contempt where what is published amounts to “no more than the evidence that will be put before the jury in any event”.
Referring to recent contempt prosecutions against the editor and publisher of the Belfast-based Sunday World, and ITV Central (which actually concerned very clear-cut cases of contempt) she said her office actively reviews media comment on active proceedings to ensure it does not fall on “the wrong side of the line”.
Her comments give no inkling of her views on prejudicial reports that are archived online which former Lord Chancellor Lord Falconer has said should be ordered offline.
They also give no clue as to her views on researching the impact of prejudicial reports on juries and giving the public more information on the progress of high-profile terror cases, as proposed by former Attorney-General Lord Goldsmith last year.
But they do suggest she is in tune with the liberal approach to contempt recently adopted by senior judges over the reporting of high-profile prosecutions such as R v Abu Hamza, and R v Dhiran Barot, in which the courts emphasised juries should be trusted to try cases conscientiously on the basis of the admissible evidence, not old media reports.
To that extent, at least, the Attorney-General’s remarks will be welcomed by journalists who wrestle daily with where to draw the line between keeping the public informed and contempt.
Jurors in the aircraft terror trial were clearly not stupid or cavalier. They apparently deliberated for more than 50 hours before deciding they could not agree on many of the charges.
And jurors sworn-in for any re-trial should be trusted to have the same cautious approach, conscientiously fulfilling their constitutional role of sifting prosecution and defence evidence.
The Attorney-General is right to stand her ground. There is no need to stamp on the press for publishing (hardly surprising) comments to the effect that the authorities felt they had a strong case.
What is prejudicial about that? After all, under the Code for Crown Prosecutors, no charge is prosecuted unless the CPS believes there is sufficient evidence and a realistic prospect of conviction – a.k.a. a strong case.
It is fanciful to suggest there is a real risk that a future jury may be influenced by old media reports saying officials were “astonished” that previous jurors were unconvinced by the prosecution evidence.